Category: Child Support

The case of Desjardins v. Bouy is a 2013 case that comes from the Alberta Queen's Bench. Facts The father argued that he had the children at least 40% of the time. Given this, he requested a reduction in child support. The Law According to section 9 of the Federal Child Support Guidelines: 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the year, the amount of the child support order must be determined by taking into account: (a) The amounts set out in the tables for each of the spouses; (b) The increased costs of shared custody arrangements; and, (c) The conditions, means, needs, and other circumstances of each spouse and of any child for whom support is sought. In this regard, this Court adopts the position that in such a situation one is to count by hours (as opposed to days). Furthermore, having physical custody of the child for the purposes of section 9 means actually having the child in that parent's care. In situations where the child is not in the physical care of either party (ex: while the children are in...

In Tookenay v. Laframboise, 2015 ONSC 2898 a husband and a wife had separated after a seven-year marriage. They had two young children, being eight and four years old at trial in this case. The following issue came before Justice Newton on the issue of child support - when determining the father’s child support obligation, should an annuity he receives from a personal injury claim (settled when he was two years old) be included in determining his income for child support purposes? The father’s position was that the annuity should not be included in his income because it was intended to repair the damage he had suffered from an accident. Justice Newton found that the monies used from the settlement for ordinary expenses ought to be included as income. However, monies from the settlement, which were used for medical expenses or rehabilitation expenses should not be imputed to the father as income. Justice Newton ultimately finds that half of the monthly annuity payments were income. To learn more about child support and our team of lawyers at Krol & Krol, click here.

In the event that your former spouse has accepted the responsibilities of being a parent to your child from a previous marriage throughout the duration of your marriage, then the child may be considered to be a child of your current marriage. If the child is deemed a child of the marriage, then you have a right to ask your spouse to pay child support, even though he or she is not your child’s biological parent. In other words, if a judge rules that your former spouse acted as a parent to your child (or what is referred to as acting ‘in loco parentis’), then your spouse will be required to pay child support in accordance with the Child Support Guidelines. While referred to as "Guidelines," this legislation is mandatory. According to section 5 of the Child Support Guidelines: Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is an amount that the court considers appropriate, having regard to the Guidelines and any other parent’s legal duty to support the child. However, you should be careful when asking for support payments from your...

Child support and spousal support obligations are a function of the payor’s income. Given this, some payors attempt to conceal or undervalue the income he/she earns. In those circumstances, the recipient of support may choose to bring a motion before the Court with respect to the imputation of income. In that case, the question is whether the payor is capable of earning more money and whether the payor is purposely under-earning with the intent to reduce their support obligations. However, in a situation where the payor of support has not been in the workforce for many years and has, thus, made no reasonable efforts to secure employment, can a Judge rule in his/her favor with respect to the issue of imputation of income? In the case of Toscano v. Toscano, 2015 ONSC 487, Justice Blishen dealt with similar circumstances and rules as follows: "Ms. Toscano was 46 years old at the time of trial, is in good health and has a Business Administration diploma. She had work experience both before marrying Mr. Toscano and with Talos Homes during the marriage. I recognize that Ms. Toscano has been out of the work force entirely for at least 13 years, and that her education and work experience continues to decrease...

At the outset, it is important to note that child support, pursuant to the Child Support Guidelines, is supposed to be recalculated on a yearly basis. On the issue of child support payments, the child is entitled to benefit in the payor’s post-separation increases income in the form of increased child support payments. In situations where there is an existing order and/or agreement, one would bring an application to vary the existing order and/or agreement. If the application to vary the existing order is granted, then the amount will be adjusted in accordance to the new income of your former spouse. The issue of a payor’s post-separation income increase and spousal support is less clear. Lawyers and judges alike continue to grapple with this issue. While this question usually arises during a review, it can also arise during the time of the initial order. The following are some general principles applicable to this issue: It would be incorrect to suggest that the Spousal Support Advisory Guidelines dictate that the parties’ incomes at the time of separation is the only relevant income in determining spousal support. It is also incorrect to suggest that the Spousal Support Advisory Guidelines dictate that the...

In order to determine the quantum of child support for a payor in Ontario, one must refer to the Child Support Guidelines. The case of Horowitz v. Nightingale, 2015 ONSC 190 referred to the Ontario Court of Appeal decision in Bak v. Dobell with respect to whether gifts should be included in income and whether the recipient of the gift should be imputed income. In Bak v. Dobell, the Court of Appeal reasoned that gifts were not to be included in income. However, the Court did note that certain extraordinary gifts may call for the imputation of income. The Court stated as follows: "Since the legislature did not include gifts within the ambit of imputed income, it can be presumed, in the normal course, that the legislature did not intend the receipt of gifts to be 'appropriate circumstances' in which to impute income. For this reason, usual gifts such as those given to mark a special occasion are not included as income  . . . Although it seems the legislature intentionally did not include the receipt of gifts given in the normal course in presumptive income, or as an example of an appropriate circumstances under s. 19(1), a court will consider whether the circumstances surrounding...

If you are the access parent (i.e. the child is living primarily with your spouse), you will be required to pay child support. Child support is made up of two parts: A basic or table amount. The basic or table amount of child support can be found in the Child Support Guidelines. Click here to access the tables for Ontario. A proportionate share of special or extraordinary expenses. This covers expenses such as the portion of medical and dental insurance premiums that relate to the child, health-related expenses that exceed insurance reimbursement by at least $100/year, and expenses for secondary school education or for any other educational program that meets the child's particular needs. The cost of extra-curricular activities may be included in this category. Whether or not an extracurricular activity is considered a special or extraordinary expense will be determined by factors such as whether the child engaged in said activity prior to separation and the means of the parties. Child support, according to the law, is the right of the child, as opposed to a right of the parents. The money is supposed to be used in order to support and maintain the child. Child support is mandatory in Ontario...

When a spouse brings a motion before the Court to rescind child support arrears, the Court will analyze many factors in its determination as to whether the support payor should be relieved of his child support arrears. The Court will generally focus its attention on whether the previous order that compelled the payor to provide child support at a specific quantum was unjust or too burdensome based on the payor’s circumstances at the time of the judgment. Justice Sherr in Baxter v. Beharry, 2015 ONCJ 10 stated that in cases where income was imputed to the payor spouse, a motion to rescind child support arrears could lead to problems associated with res judicata. "It is well settled law that, if income is imputed, then the issue will generally be res judicata on a motion to vary or change support. See: Bemrose v. Fetter, 2007 42 R.F.L. (6th) 13. Although the court always has discretion with respect to the issue of res judicata and can consider fraud, fresh evidence, additional disclosure, or issues of fairness, the principle of res judicata provides that generally, a matter cannot be re-litigated once it has been determined on its merits." To learn more about child support arrears...

At the outset it is important to explain the concept of the table (also known as the basic amount) of child support. The table amount of child support that a payor (or the support-paying spouse) is required to provide is determined in accordance of Federal Child Support Guidelines. The amount takes into account the support payor’s income, the number of children in need of support financially and so forth. There are, however, situations upon which the court may permit the support payor to pay an amount that is different from that outlined in the Federal Child Support Guidelines. For example, in a situation of undue hardship to the spouse making the request or a child in respect of whom the request is made. “Undue hardship” means serious financial difficulty for either the spouse making the request or a child in respect of whom the request is made. The following may cause a spouse or child to undergo undue hardship: The spouse has responsibility for unusually high level of debts reasonably incurred to support the spouse and children prior to separation or to earn a living; The spouse has unusually high expenses relating to exercising access to the child; or, The...

Tillmanns v. Tillmanns, 2014 ONSC 6773 deals with the concept of imputing income. If a party to a matrimonial dispute earns less money than what s/he is capable of earning, a court has the discretion to impute income to that spouse. Section 19(1) of the Child Support Guidelines permits the court to impute income as follows: The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include: The parent or spouse is intentionally underemployed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse; The parent or spouse is exempt from paying federal or provincial income tax; The parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; It appears that income has been diverted which would affect the level of child support to be determined under these guidelines; The parent's or spouse's property is not reasonably utilized to generate income; The parent or spouse has failed to provide income information when under a legal obligation to do so; The parent or...