By Nathalie Boutet one of Canada’s top family law lawyers
Choosing to separate brings with it numerous financial and emotional implications . And, in cases where children are involved, one of these implications is the parents’ obligation to financially support their children post separation. Child support laws can be complex and family law lawyers are your best resource for information and guidance.
The objective of child support law is to ensure that children do not suffer as a result of separation. Parents are asked to do their utmost to ensure that their children maintain a standard of living similar to what they enjoyed before the separation.
Child support in Ontario is governed by the Ontario Child Support Guidelines if you are not married or the Federal Child Support Guidelines if you are married. The Ontario Child Support Guidelines and the Federal version are virtually identical.
The term “Ontario Child Support Guidelines” may be misleading because the Guidelines are not just “guidelines” but are mandatory. The Guidelines dictate that both parents are obligated to financially support their children. Child support is payable until the children are no longer dependant on their parents. Generally, this means until after a child has obtained a College Diploma or their first University Degree.
Since the Guidelines came into play, child support in Ontario has become somewhat easier to deal with. Yet child support disputes are frequent and remain an important aspect of family law. I advise everyone to speak to an Ontario Family Lawyer about child support issues, whether you believe that your situation is simple or complex (see below).
Family Law Lawyers use sophisticated software that includes a child support calculator. A child support calculator helps lawyers to figure out child and spousal support ranges for a particular family, as well as income tax and other fiscal implications. Now, while you can find a simplified version of an Ontario child support calculator online, I strongly discourage using an Ontario child support calculator without the guidance of an Ontario family lawyer.
The Guidelines are fairly simple to apply if all of these circumstances apply:
ï° the children reside primarily with one parent (i.e. the parents do not have equal or almost equal parenting time),
ï° the parents are employed by a third party (i.e. are not working at a self-owned enterprise),
ï° there have not been recent important fluctuations in incomes,
ï° the children are under the age of 18, and
ï° the parents do not have disputes about what extra-curricular programs and activities the children should do.
Here is how the Guidelines apply in a fairly simple situation:
The custodial parent pays for the children’s expenses sometimes indirectly and sometimes directly.
Indirect expenses paid by the custodial parent include: home utilities, transportation, food, small kids’ activities like pizza lunches, friends’ birthday parties, haircuts, etc. So in effect, the parent is not writing one cheque per month to cover the amount of child support set out in the Ontario child support tables, but rather is making indirect contributions to his or her children on a daily basis.
Direct expenses paid by the custodial parent include a portion of the children’s more costly expenses such as children’s extra-curricular programs, summer camps, medical expenses, etc. These expenses are listed in section 7 of the Child Support Guidelines, and lawyers often refer to them as “section 7 expenses”. The Child Support Guidelines in fact provide that these expenses are to be paid by both parents in proportion to their respective incomes.
The non-custodial parent will cover his or her share of the expenses for the child by making a monthly payment to the other parent. The parent writing the monthly cheques is referred to as the “payor”. The payor does not have a say into how the other parent spends this money. It is assumed that it will go towards the children’s needs.
The Ontario child support tables are used to determine the amount of the monthly payments that the payor has to make to fulfill his or her child support obligation. Some payors find their child support obligation onerous, and some wonder how the child could need all of this money. But judges will not depart from the monthly amount in the table.
The child support tables were developed by taking into account both parents’ contributions to their children’s expenses. So children receive contributions from their two parents; through payments in the amount set out in the Ontario child support tables for the payor, and in indirect contributions by the custodial parent.
Each year, the child support payable by the payor will be reviewed to take into account fluctuations in his or her income. Yearly disclosure of financial information such as Income Tax Returns is mandatory.
In addition to the monthly payment, the payor will also make contributions to the “section 7 expenses” in proportion to his or her income. First the parents have to agree on what expenses fall under this category. Then parents make their contribution directly to third parties, or one parent may be in charge of making the payments for the kids’ programs and the other writes a cheque to that parent to cover his or her proportionate amount.
If your situation is different from the above facts, then the application of the Guidelines is much more complex and I strongly encourage you to seek formal legal advice. In these cases especially, it is not prudent to use an online service such as an Ontario child support calculator without the guidance of an Ontario family lawyer.
More complex situations include any where:
ï° the parents have equal or almost equal parenting,
ï° one child resides primarily with one parent and the other child primarily with the other parent,
ï° the parents reside in different provinces,
ï° a child has special needs,
ï° one or both parents is working at a self-owned enterprise,
ï° there have been recent fluctuations in income,
ï° there is unemployment,
ï° there is a voluntary or involuntary reduction in income,
ï° there is a retirement,
ï° there are step-children,
ï° the children are approaching or are over the age of majority,
ï° there are disputes around the children’s extra-curricular activities,
ï° there is no trust between the parties,
ï° the relationship is tense between the parties, or
ï° there is insufficient financial disclosure.
It would be impossible to explain here the complexities that these circumstances can create. My intention with this list is to alert you to the difficulties of navigating through the laws on child support in Ontario alone. I caution you to retain an Ontario family lawyer as soon as possible to support you with these issues.
There is a lot of potential for parents to work together to create a child support arrangement that works for the whole family. If you choose a legal process that is very adversarial (such as going to Court or to Arbitration), the determination of your child support obligations will undoubtedly be more expensive than if you choose a legal process where the spouses have more say (such as in Collaborative Law, Mediation, or Unregulated lawyer negotiation).
It’s my passion for helping couples minimize the negative impacts of divorce and separation that lead me to co-found The NEXT Program. It’s designed to give couples with children the tools they need to resolve their relationship issues, whether they choose to stay together or separate. To find out more about how The NEXT Program can help you and your family, please visit our website www.thenextprogram.com.
The time to get your strategy in place is when you are thinking of separating. Attempting to separate on your own without getting expert advice may negatively affect you and your children for many years.
Nathalie Boutet is a leading Canadian family law lawyer and co-founder of The NEXT Program. She is also a Deputy Judge in the Ontario Small Claims Court, a local and international teacher and she is a sought after family law lawyer, Mediator and Collaborative Law lawyer. She regularly provides opinions to the Media on current legal matters.
The best way I know to learn the essentials to equip yourself and your family for a separation is to do The NEXT Program. Please visit The NEXT Program website (www.thenextprogram.com). It’s the best investment in your future you can make.
Nathalie Boutet has been a family lawyer in Toronto for over 20 years. She has been a Collaborative Law lawyer for the past decade. She is also a Deputy Judge in the Small Claims Court, a mediator, a teacher of Collaborative Law in Canada and Europe, and a member of the Chief Justice of Ontario Advisory Committee on Professionalism. Her parents divorced when she was a teenager. She is a widowed mother of one. To find out how The NEXT Program can support you and your family if you are thinking of divorcing. Please visit www.thenextprogram.com or call 416-646-3377.