Area of Law: Family Law
Answer # 117
Child supportRegion: Ontario Answer # 117
Who is responsible to pay child support?
If parents have separated or divorced and their children live all, or most of the time with one parent, the other parent is usually responsible to pay child support to help provide for the children. The amount of child support will generally depend on how many children are being supported and the amount of money being earned by the parent paying the child support. Payments, from the parent who does not have custody to the parent who does, are usually made through a government office and sometimes directly from the one parent to the other.
In situations of joint, shared, or split custody, the responsibility for child support may be reduced depending on the extent of parenting assumed by each parent and by their respective incomes.
Generally speaking, child support obligations will relate to the birth parents. However it is important to remember that anyone who treats the child of another as their own child may also assume a legal obligation of child support. A typical illustration would be where a man marries a woman who has two young children by a previous marriage. In the course of marriage the man may form a close bond with those children and come to be regarded as a “father” for the purposes of paying child support.
Which children must be supported?
Child support is generally available for any child under the age of eighteen. In some circumstances, child support does not have to be paid for a child who is 16 or 17 if they have chosen to move out of the family home and no longer live by their parent’s rules. In contrast, child support can be required for children over the age of 18 if they are unable to withdraw from parental support, such as children who are still in full-time attendance at school or unable to support themselves because of a disability.
Child support agreements
If parents can agree, they may enter into their own child support agreement, which is often part of a separation agreement. If they cannot come to an agreement, they can ask a judge to determine the amount. Services such as mediation, or government family services may be able to help parents with this process. To ensure that you understand your legal rights and obligations, however, it is advisable to consult with a lawyer before signing a child support agreement.
How is the amount of child support determined?
In Canada, the provinces and territories share responsibility with the federal government for matters relating to child support. The minimum amount of child support to be paid is based on federal and provincial government Guidelines. The Federal Child Support Guidelines consist of a table that is used to calculate child support payments and is based on the income of the parent who pays support, and the number of children entitled to support.
Whether the Ontario or the federal Guidelines apply, depend on a number of factors, such as if the parents are married. Specifically,
- The federal Divorce Act and the Federal Child Support Guidelines apply to parents who are already divorced or are in the process of getting a divorce.
- Ontario Child Support Guidelines apply to parents who were never married and who both live in Canada, or who are married to each other and are separated, or planning to separate, but have decided not to divorce.
The Federal Child Support Guidelines apply if you are getting divorced and:
- you and the other parent both live in Ontario, or
- you and the other parent live in different provinces, or
- one parent lives outside of Canada.
As mentioned, the type of parenting arrangement, for example whether there is split, sole or joint custody, also affects the amount of child support paid.
The rules determining income can be complex but usually are calculated on a spouse’s total annual income. There are also issues involving add-ons, such as day-care, and undue hardship that may have to be resolved. Both the judges deciding child support, and the parents who are setting up the agreement on their own, can use these guidelines when deciding how much support should be paid.
Support orders made before the 1997 Guidelines
Support orders made before the 1997 Guidelines came into effect are still valid, but either parent can ask the court to have the order changed so that the Guidelines will apply.
Tax treatment of child support payments
At one time, the person who paid child support could subtract it from his or her taxable income. The person who received the child support had to add it to his or her taxable income.
The Income Tax Act has been changed and child support that is paid according to a written agreement or a court order made on or after May 1, 1997 is neither deducted from the payer’s income nor added to the recipient’s income.
For people with agreements before May 1, 1997 these tax rules do not apply and are not retroactive. That said, the parents can agree to have the tax rules apply to their existing order if they don’t want to change the amount but simply want the new tax treatment. Also, if they get a new order or agreement changing the amount of child support, then the newer tax rules will apply.
When does child support end?
If you have a court order, or have entered into an agreement, for child support, the conditions under which the support will end should be specified. For example, support might stop only when a child reaches a certain age or obtains a certain level of education. However, many support orders and agreements do not include a termination clause. Generally, in such cases, support must continue until both parents agree that it will end. If the parents cannot agree on a child support termination date, the matter can be brought to court. More information is also available from the federal Department of Justice.
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