Category: Child Support

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...

When an order is made in relation to child support, the order is immediately forwarded to the Family Responsibility Office for enforcement. The Family Responsibility Office is responsible for ensuring that the terms of the court order are enforced. In the event that the payor parent is not abiding by the court order, and that payments are not being made according the provisions outlined in the court order, the Family Responsibility Office, or recipient of support, is in a position where they may take steps to enforce payment of the child support that is owed. Methods that may be used by the Family Responsibility Office in order to collect child support payments include obtaining child support payments directly from the payor’s employer, garnishment of the payor’s bank accounts or RRSPs, or filing writs against property that the support payor owns. The Family Responsibility Office can also ask the Ontario family courts to suspend the support payers drivers license, passport, or other federal licences. If you wish for the Family Responsibility Office to enforce child support payments and you and your spouse have withdrawn from the services of the Family Responsibility Office (by filing a Notice of Withdrawal), you will have to re-file the...

The case of Lewis v. Correia, 2014 ABQB 314 stands for the principle that a parent paying support is not an automatic wallet with no rights. In Lewis v. Correia the father, who was paying for his daughter’s post-secondary tuition, was not convinced that his daughter was continuously attending class, and therefore requested updated transcripts from his daughter. The daughter refused to provide her father with her grades, and eventually the father applied to the courts to compel his daughter to submit regularly updated transcripts. Justice Veit stated that: "A minor child on whose behalf s.7 expenses are claimed for attendance at post-secondary educational institution must provide basic information to establish active attendance in the program; it is not sufficient for the debtor parent to be provided with information that their child is enrolled in a post-secondary education program. A requirement to provide information is not equivalent to requiring the child to maintain a filial relationship with the support debtor." Justice Veit determines that proof of enrolment does not suffice with respect to the daughter’s ongoing obligation to provide information to her father. Furthermore, Justice Veit states that an adult child that is not merely looking to be awarded s.7 expenses but...

When a spouse quits their job after separation, one common concern is whether they can do this to pay less child support. In Ontario, child support is governed by specific legal rules that prevent parents from dodging their obligations simply by reducing their income. This article explains the relevant law and what courts look at when someone intentionally quits work to affect child support payments. Child Support in Ontario Child support ensures that both parents contribute financially to their children’s needs after separation or divorce. In Ontario, child support amounts are determined using the Federal Child Support Guidelines, which base support largely on the paying parent’s income. The goal is to make sure children continue to receive fair financial support. Support is mostly based on income and the number of children. The custody arrangements. Can Someone Quit Their Job to Avoid Child Support? Some individuals believe that by quitting their job, or deliberately reducing their income they can minimize or completely eliminate their obligation to pay child support.   If a parent believes that the other parent is purposely avoiding payments in this way, they are within their rights to bring their case to the Court’s attention. If the Court...

An interim order is temporary. It is in effect until a final decision is made at trial. Section 15.1(2) of the Divorce Act is the legislation for married couples that have separated to ask the court to make this type of temporary order. Most often, judges decide temporary support orders on a motion. On a motion, parties present evidence through Affidavits. Depending on the parent’s evidence in these affidavits, the courts can determine which parent(s) pays child support and the amount that will be paid temporarily. The resulting child support order is based on “rough justice”. This is because it is decided on a motion, and the court does not have the full record before it. However, not all temporary orders are meant to carry the parties to trial. A court has the ability to make an “interim-interim” order on child support, only meant to get the parties to the next step in court (and not all the way to a trial). Once the parties are at a trial, they can give fulsome, oral evidence. This is done through direct and cross examination. It is only then that a judge make a final child support order. At a trial, a...