Child Support Lawyers

Do I need a lawyer to ask the court for child support?

You do not need a lawyer to file an application or motion with the court for child support. Many family law litigants choose to self represent due to economic hardships. However, navigating any family law matter can be a challenging experience.

What you should know about Child Support in Ontario

Child support are payments made by a parent to help support and pay for the expenses of raising children. Usually it is paid by the noncustodial parent to the custodial parent since it is the custodial parent who bears most of these expenses.

  • Child support is not a right of a parent but rather a right of a dependent child.
  • The legislation in Ontario that governs child support are the Family Law Act, the Ontario Child Support Guidelines and the federal Child Support Tables.
  • Any parent can make a claim for child support. There is no requirement that the parents were married.

Parents must support the child even if they:

Were common law spouses

 

Never had a relationship with the other parent

 

Don’t have/never had a relationship with the child

 

Don’t have a relationship with the other parent

 

Don’t see the child

 

Have other children with other people

 

Definition of parent

In family law it’s important to have a clear understanding of what the law means by ‘parent’. The Family Law Act defines a parent as more than just the biological parent and includes:

“a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody”

This means anyone who can be shown to have intended to be a parent to a child can be ordered to pay child support for that child. A parent can include a biological parent, non-biological parent, step parent or adoptive parent.

Dependent child

To be entitled to child support, the child must be a ‘dependent’. Usually this means they are under 18 years of age and still live with a parent. Generally a child is not a dependent if they:

  • Are married
  • Are over 16 and voluntarily moved out of the home (not kicked out)

However, sometimes a child can still be entitled to child support even if they live on their own and/or are over 18. A good example of this is when they are in post-secondary education. In these cases the court is less likely to order periodic support and is more likely to order section 7 expenses to be paid. See ‘adult children’ below for further discussion.

There can be child support ordered from multiple parents

Ontario family law is guided by the principle that children should have access to as many resources as possible and have a right to benefit from the parent’s means. To this end, child support could be ordered to be paid by both a biological and step parent for the same child, at the same time. 

How do I get child support in Ontario?

Child support can be claimed as part of your divorce application or you can file a motion that includes your claim for child support.

What is child support for?

Child support is the right of the child and the law states children have a right to benefit from their parent’s financial circumstances. Monthly child support is for ordinary everyday expenses and special or extraordinary expenses, called “section 7 expenses” are intended to cover additional costs such as medical, dental, education and extra curriculars.

How can I get my child support lowered?

Unless the court order or agreement for child support provides for a review, the only way a court will reduce child support is if there has been a “material change in circumstance” – that is, a change that was not foreseeable at the time the order was made.

Do you have to pay child support if you have 50/50 custody?

Shared or split custody does not mean there will be no child support paid. It will depend on the financial circumstances of the parents. For instance, if there is shared custody, or 50/50 custody, it may be the case that a calculation as follows is made: the child support is calculated for each parent, the lower amount is deducted from the higher and the higher earning parent pays the other parent the difference.

How much is child support in Ontario?

The amount of monthly child support is calculated according to the federal child support tables. The tables base child support on the payor’s gross income and the number of children. If there is shared or split custody, there will be some sort of offset in the amount. Expenses beyond the ordinary everyday expenses covered by monthly support are usually to be paid in proportion to the parent’s respective incomes.

Expenses covered by child support

The expenses for a child are best understood as falling in two categories: (1) ordinary (basic monthly) expenses; and (2) special (Section 7) expenses.

Basic monthly expenses

Ordinary expenses are the day to day costs incurred for raising and taking care of children, such as food, shelter, clothing and transportation. Monthly child support is intended to cover these expenses. These are paid in accordance with child support tables in the Child Support Guidelines (see below).

Section 7 expenses

These are expenses beyond the ordinary ones including:

  • Child care: resulting from custodial parent’s job, education, illness or disability
  • Insurance: medical and dental insurance premiums for the child
  • Health: orthodontics, counselling, psychologists, psychiatrists, physiotherapy, occupational therapy, speech therapy, prescription medications, medical devices and aids, glasses and contacts, etc.
  • Education: extraordinary primary and secondary school expenses, post-secondary (and sometimes post-graduate) expenses and any educational programs based on the child’s needs or abilities, etc.
  • Extracurricular activities, if extraordinary

Child support for these expenses are calculated separately and differently than monthly child support (see below).

What percentage of your income do you have to pay in child support?

Child support is not based on a percentage of the payor’s income. Child support is calculated based on federal child support tables that take into account the payor’s gross income and the number of children.

Can a father get child support?

Child support entitlement is not based on the gender of the payor and recipient payor. Child support is the right of the child and it is to be paid to the recipient payor, regardless of gender.

CHILD SUPPORT CALCULATIONS

Monthly support Calculation

Monthly child support is calculated in accordance with child support tables in the Child Support Guidelines. This is often called the “table amount”. You can run your own calculations here. The tables will calculate child support if the payor’s annual income is between $12,000 and $150,000. The calculation is based on:

  • The gross income of the payor parent ***
  • The number of children***Note: The recipient parent’s income is not usually a relevant factor

What if the Payor income over $150,000

For high income earners, the courts have discretion as to whether they will apply the table amount or not. In exercising this discretion they will factor in the lifestyle the child is accustomed to, the conditions, means, needs, and other circumstances of the children, the financial ability of each spouse to support the children and section 7 expenses. While courts generally follow the table formula, they may not if it leads to an unconscionable result. For instance, if a payor’s income was $500,000, and there was one child, the monthly child support would be $3,819.00, which is not unreasonably high. However, if the payor’s income was $3,500,000, the monthly amount would be $25,419.00, which may or not be appropriate.

Can you pay less than the table amount of child support?

It is possible for a court to order child support in an amount that is less than the table amount or even none at all. This may be the case when:

  • The payor is a step-parent
  • The child is not a dependent
  • There is undue hardship or financial difficulties such that the payor parent cannot pay

Section 7 expenses

Generally, section 7 special and extraordinary expenses are proportionate to each parent’s income. The amount paid by each parent is determined by the court and in making a determination the court generally considers:

  • The gross income of the payor parent ***
  • The number of children***Note: The recipient parent’s income is not a relevant factor

How does custody affect child support?

The child support tables are always the starting point but depending on the arrangement, there may be some differences:

Split custody

In situations of split custody, one parent has custody of one or more of the children and the other parent has custody of the remaining children.

When calculating child support where there is a split custody arrangement, each parent calculates the support they should pay to the other parent, then the lower amount is subtracted from the higher amount:

Example:

Parent A has custody of 2 children and earns $40,000 Parent B has custody of 1 child and earns $60,000 Based on the tables:

  • Party A’s monthly child support payment for 1 child to Party B is $359
  • Party B’s monthly child support payment for 2 children to Party A is $915

$915 – $359 = $556
Therefore, Party B would pay Party A $556 a month.

Shared custody

Shared custody is an arrangement where the children spend roughly the same amount of time with each parent (at least 40% of the time).

To determine how much child support is to be paid and by whom, each parent calculates the child support they would pay to the other parent if the other parent had custody. Then the lower number is deduced from the higher number and the parent with the higher number pays this difference to the other parent.

Example:
Party A and B have 2 children.

  • Party A earns $50,000 a year and
  • Party B earns $30,000.

Based on the tables:

  • Party A’s monthly child support payment to Party B is $755
  • Party B’s monthly child support payment to Party A is $459

$755 – $459 = $296
Therefore, Party A would pay Party B $296 per month.
In addition, if it’s the case that one parent has greater expenses for the children than the other parent, that amount would be impact the monthly child support amount.

Is child support taxable in Ontario?

The general rule is monthly child support payments are not deductible by the payor parent or taxable to the recipient parent.

How Long is Child Support Paid?

Child support may be paid until the child is 18, or under 18 and voluntarily moves out on their own. However, it may continue if the child is in post-secondary education or graduate school. It may also continue indefinitely if the child has a chronic illness or disability.

Do I have to pay child support if my child is over 18?

An adult child, one over 18 years of age, can still qualify as a dependent. The question is whether they can support themselves or not. Most often adult children will be deemed dependent if:

  • They have a disability or illness
  • They are in school full-time

If a child has a chronic illness or disability, it’s possible for them to remain a dependent for their entire life.

Post-secondary education

The courts treat adult dependent children, by virtue of the fact that they are still in school, differently than children under 18. They may order table amount periodic child support or a variation on the amount. They may order a different proportion of the post-secondary education expenses be paid and frequently will attribute a portion of the expenses to the adult child. There is also, often, an obligation that the child is putting genuine effort into their education and not just enrolled.

While generally, the courts order support until the child completes their first degree, usually around age 22. Courts may order support during the pursuance of a second undergraduate degree/diploma as well as graduate school. This decision will depend on the facts and circumstances of the case and the abilities of the adult child.

Do you still have to pay child support if the child is in university?

If it is the child’s first degree, it is much more likely there will be a continued obligation to pay child support. In some cases, child support continues through a second degree or a graduate degree.

What happens if I can’t pay child support?

If you cannot pay child support you should alert the Family Responsibility Office and inform them of your situation. FRO cannot change court orders, but, in some circumstances, they can reduce support. You may also want to consider making a motion to change to the courts to inform the court of your change in circumstances and ask for a pause, reduction or termination of child support.

Reductions and increases to child support

There are a number of events that could give rise to grounds for asking the court for a reduction or increase or a termination of child support. However, the only way a court will consider a change is if it can be shown there is a “material change in circumstances”.

The Supreme Court of Canada has defined a material change as one that:

“if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting change was known at the relevant time, it cannot be relied on as the basis for a variation.”

A material change could include:

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A child starting university

 

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An illness or disability affecting the payor’s ability to pay

 

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An increase/decrease in the payor’s income

 

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A child getting married

 

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An adult child developing a chronic illness or disability rendering them unable to care for themselves

 

Does remarriage affect child support?

Remarriage usually has no impact on child support, since child support is based only on the payor’s income.

If there has been such a change, the procedure for asking the court to vary the court order setting out the child support is to file a Motion to Change. However, this decision should not be made lightly as a motion to change may enable the other parent to reopen other issues covered by the court order.

How to recover unpaid child support?

Child support arrears

Court orders for child support or agreements registered with the court are enforceable just like any other court order. There are two main mechanisms for recovering unpaid child support:

Family Responsibility Office (FRO)

The Ontario Government’s Family Responsibility Office enforces child and spousal support orders.

In order for FRO to have authority to enforce an order or agreement, the order or agreement must be filed with FRO.

If a payor parent is in arrears for child support, FRO has the authority to do any of the following to recover:

  • Garnish the payor parent’s bank account
  • Garnish money a payor parent may be entitled to receive from the Government of Canada
  • Report the payor parent to the Credit Bureau
  • Report the payor parent to their professional or occupational organization
  • Suspend the payor parent’s driver license
  • Suspend the payor parent’s Canadian passport or other federally granted licenses
  • Place a lien on the payor parent’s property
  • Issue a writ of seizure and sale for the payor parent’s property
  • Seize the payor parent’s lottery winnings
  • Commence a Default Hearing against the payor parent, which may result in up to 180 days of jail time

Litigation

If there is still an ongoing family law matter, such as one that involves property or the matrimonial home, and there has been an order or agreement made for child support and there are arrears, it may be possible to ask the court for an unequal division of property to account for the arrears.

Can you go to jail for not paying child support in Ontario?

Yes. If there is a court order for child support and it is not followed by the payor, the payor can be found in contempt of the order and the court may imprison the payor. In one case, a father was imprisoned for 90 days for failing to pay child support and further jail time was ordered in the event he defaulted again.

Top Takeaways
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A parent may be required to pay child support even if they have no relationship with the other parent or the child
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A parent is anyone who has shown an intention to treat a child as their own is a parent and may be required to pay child support
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Child support does not necessarily end when the child turns 18
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Child support may be ordered for adult children
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There are two types of child support: monthly and section 7 special and extraordinary expenses
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The starting point for calculating child support is the child support tables
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If there has been a “material change” in circumstances, it might be grounds to increase, reduce or terminate child support
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The Family Responsibility Office enforces child support orders and recovers unpaid child support and arrears
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