Chapter 2: How Does Child Support Work?
The complexities of child support can muddy the waters during divorce proceedings. Arm yourself with the right information and you’ll be back to smooth sailing in no time.
Here’s what you need to know:
- Child support is paid on a monthly basis by the parent who does not have primary care. It is intended to share the costs of raising the children between both parents.
- The Federal Child Support Guidelines determines the amount of child support to be paid.
- The payer’s income is their total income as indicated in their tax return at line 150. If the children reside with each parent more than 40% of the time, an adjustment to the amount of child support is possible. Normally “set off child support” is paid. Set off child support is a payment you make to your spouse based on your income and the number of children you have. Your spouse in turn also pays you according to the number of children and income, setting off one amount against the other. In the end, the person with the higher income pays some child support to the other spouse. Set off child support also applies to split custody situations where some children live primarily with you and other children live primarily with your spouse. In this case, payment is made according to the number of children in your spouse’s care and your spouse pays you according to the number of children in your care. In rare cases, it is possible to seek a reduction in child support if payment according to the guidelines would cause “undue hardship”. This is very difficult to prove. A lawyer can assess your case and help guide you through the requirements.
- Self-employed people may have adjustments made to their income to determine the proper amount of child support. For example, personal expenses written off by the business may be added to their income to determine child support. Please see the chapter in this book that focuses on this issue.
- Child support is not tax deductible by the payer and does not have to be claimed as income for tax purposes by the recipient.
- Child support can be adjusted whenever there is a material change in circumstances such as an increase in income or a change in the residence of the children.
- Each parent has the right to see proof of the other’s income once a year to determine whether there should be any changes to the amount of child support being paid.
- Child support terminates when a child reaches 18 years old unless the child is unable to become economically self-sufficient due to health issues or they are attending school on a full time basis. An exception may be a child taking a “gap year.”
- Child support usually ends when a child has completed their first four years of post-secondary education. In some cases, it can go beyond one post-secondary degree but this is rare.
- Post-secondary education costs are usually shared in proportion to your income and your spouse’s income but can be shared equally. In most cases, the child is required to share in the costs too.
- The costs of extracurricular activities are usually only shared if they are extraordinary. Participation in a rep hockey team, competitive swim team or teams requiring a lot of travel and expenses can be costly. These extraordinary extracurricular costs are shared in proportion to incomes but some clients agree to share the cost equally.
- The after-tax cost of daycare, summer camps and before and after-school care is usually shared in proportion to incomes but can be shared equally. Our lawyers have a computer program to help determine the “after-tax cost”. It deducts any government subsidies and benefits being received.
- Medical and health care costs (for example, dental, orthodontic, chiropractic, eye glasses) that are not covered by an extended health care insurance plan or OHIP are usually shared in proportion to incomes or shared equally.
- To get a divorce, the proper amount of child support must be paid according to the Federal Child Support Guidelines, unless there are special benefits being received in lieu of proper child support. For example, if the payer is taking extra debts or has given an asset to the other parent, lesser child support is possible.
- Child Support is usually paid by post-dated cheques or electronic transfers according to the payer’s paydays.
- It is possible to seek child support from a stepparent who has been like a parent. The biological parents continue to be primarily responsible in paying child support.
The Family Responsibility Office (FRO) will collect child support but we suggest you use FRO only if necessary, as this government agency is understaffed and often frustrating to work with. If enforcement is necessary, the FRO can suspend the payer’s driver’s license or put the payer in jail if approved by the court, so working with them can sometimes be helpful.
Child support can be affected by the amount of time a child spends with each parent. In a shared custody situation where children are with both parents more than 40% of the time the child support amount is often reduced.
To determine the amount, first establish how much you would pay according to the Child Support Guidelines if the children were residing primarily with your spouse. Then determine the amount of child support your spouse would have to pay you if the children were primarily residing with you. When one amount is set off against the other, the amount remaining is usually the amount of support to be paid.
We say “usually” because judges hold a lot of discretion when determining child support in shared custody situations. Some judges will add a little something to the set off amount, some will use the exact set off amount and some will only reduce the amount slightly even if you care for the children more than 40% of the time. It largely depends on the judge and your situation.
To determine whether you or your spouse meet the 40% threshold, most judges just count the regular nights the children spend with each of you. For example, if the children are with you 6 out of 14 nights, they are with you 43% of the time and you have met the threshold.
As a result, negotiating a settlement of the amount of child support in shared custody situations is best handled with legal advice, and we’re here to help you get it resolved. By using the Collaborative Process, you and your spouse can negotiate an amount that works for both of you.
