Can I be summoned to pay my fiance’s child support in Ontario? Question: I am engaged to someone who already has kids from a previous marriage: 6, 13 and 14 years. If he defaults on his child support payment, will I be asked to pay his support? Will my income be factored in? How can I protect myself? – Advice Scene Child support is the right of the child and the obligation of the parent. So, the quick answer is no. But, like most things in the law, things can be more complicated than that.Child support is always payable by a biological or adoptive parent that has a child for 50% of the time or less (where there is “shared parenting”, the amount of child support can vary from the child support tables, but usually both parents paytable child support to each other). For more about how child support works watch this video and listen to this podcast.In Ontario, getting married does not mean you “own” your spouse’s assets nor does it mean you are responsible for their debts – including any debts for child support. Part 1 of Ontario’s Family Law Act covers property division on separation. For a full explanation of how that works, watch this video, and listen to this podcast. But to summarize, separated married spouses share in the increase in each other’s net worths, but not in the actual assets themselves. Common-law couple have even fewer property rights. So, if your fiancé is in debt to his ex for child support, that is not your debt.However, unfortunately, that may not be where it ends. Your fiancé’s child support debt could end up being your problem too.First, with regard to property division, if you separate, you share in the increase in your spouse’s net worth. If you are married to your spouse, and he builds up a child support debt, that debt decreases his net worth. So, on separation, his net worth is lessened by the amount of that child support debt. Since, on separation, you essentially get half of his increase in net worth (and he gets half yours), any debt he reduces is how much you will get by half of the value of that debt. So, you end up indirectly paying half of that child support debt because of the decrease in what he shares with you. If you have a greater increase in net worth during the marriage, you would owe him an “equalization payment”. So, if his net worth is decreased by child support debt, how much you owe would be increased by half the amount of that debt. In that case, you are, indirectly, paying half of that child support debt. These types of debt problems, which can have very unfair results, can be fixed with a marriage contract. Click the link to see a video on how to use a marriage contract to avoid sharing your spouse’s debts. You could have a contract that says your spouse’s child support debts will not affect the property. Equalization if you’re separate.There is another way child support for your spouse’s kids can become your problem. I noted that child support is the obligation of parents. That can mean more than just biological or adoptive parents. While biological and adoptive parents always pay full table child support, other people who have acted as a parent to a child can be on the hook for child support too. That means that, as a step-parent, you could end up owing child support to your spouse’s ex. Listen to this podcast that explains more. This does not mean you share in your spouse’s child support obligation, but it means you have your child support obligation for the kids. As explored in this video from a high-profile new story, acting as a parent to someone else’s kids can create a child support obligation – especially where you do it with the best motivations.So, while you are not directly responsible for your fiancé’s child support, you could end up sharing in that debt if you separate from him after getting married if he owes back child support. You could also end up owing child support yourself if you act like a parent to his kids. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawDecember 17, 2020June 24, 2021
Determining the Child Support Obligations of a Step Parent A spouse who stands in the place of a parent to a child can be obligated to pay child support, according to s. 5 of the Ontario Child Support Guidelines (“Guidelines”). The amount a step-parent will be ordered to pay is at the discretion of courts. When exercising this discretion, the court will look to the other provisions of the Guidelines, and to any other parent’s obligation to support the child (including biological parents). The approach courts take to calculate the amount of child support owing by a step-parent can vary. They range from apportionment to percentages and top-ups. However, the case law has carved out several principles that courts generally follow in their determination of a step-parents’ child support obligations. These principles are described below. Primary Child Support Obligation of the Biological Parent The Ontario Court of Appeal in Wright v. Zaver, 59 OR (3d) 26 [2002] interpreted s. 3 of the Guidelines as placing a primary obligation on the biological parent to pay child support in the amount that is determined by the Guidelines (sometimes referred to as the table amount). The Guidelines determine the quantum of child support based on the income of the payor parent and the number of children to whom support is owed. For the biological parent, this amount is automatically calculated, and cannot ordinarily be negotiated lower due to the presence of a step-parent. On the other hand, the step-parent can argue for a reduction in the quantum of child support payable if a court finds that it is appropriate to do so. The full Guideline amount may be the starting point for the court’s determination, but the step-parent can rebut the supposition that they owe the full table Guideline amount with compelling evidence that the Guideline amount would be inappropriate (Kobe v Kobe, [2002] OTC 186 [ONSC]). Regardless of the approach taken, the Guideline table amount will likely still serve as an upper limit for the step-parent’s support obligation. Step-parent’s Child Support Obligation is in Addition to Biological Parent’s Obligation If a court orders a step-parent to pay child support in accordance with the Guidelines, the biological parent’s support obligations are still not displaced. It is at the discretion of the court to determine what additional amount would be appropriate for the step-parent to pay. In most cases, it is unlikely that courts will find it appropriate to award a “windfall” to the support recipient resulting from collecting the full amount of child support twice: from the biological parent and from the step-parent. It is also unlikely that the court will grant this accumulated child support obligation from all parents when this would lead to a standard of living beyond one the child has previously enjoyed. However, if the child support payable by the biological parent is not enough to provide the child with the standard of living enjoyed previous to their parent’s separation, the step-parent may be obliged to top up the amount paid by the biological parent or pay the full Guideline amount, where the biological parent is unable to pay at all, or cannot be located. Children First Objective It is important to keep the objectives found in section 1 of the Guidelines in mind. These include that a “fair standard of support” and “reduction of conflict between parents” are relevant to the determination of appropriate support by a step-parent. The legislation and courts set out to provide a degree of certainty for parents sorting out their affairs after a separation. However, primacy is given to the standard of living the child enjoyed when the parents were still living together, and the best interests of the child, in accordance with the “children first” perspective of the Guidelines. If you have more questions about your family law matter contact our family law department at 416-449-1400 or emailing info@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawSeptember 25, 2020April 15, 2024
Changing Child Support or Spousal Support Payments During COVID-19 Child and spousal support obligations take effect either pursuant to a court order or a separation agreement (to be sure, many people make informal arrangements amongst themselves, though this is rarely advisable). Separation agreements typically contain review clauses which outline the process for changing a payor’s child or spousal support obligations, along with what kind of change in circumstances will trigger the review. Parties who have signed a separation agreement addressing support should begin there when seeking to vary a support obligation. In Ontario, support orders are made either pursuant to the Divorce Act or the Family Law Act, depending on the court in which the proceedings took place. Sections 17(4) and 17(4.1) the Divorce Act and sections 37(2) and 37(2.1) of the Family Law Act outline the tests for varying child support and spousal support slightly differently. In practice, however, we are generally concerned with whether a “material change in circumstances” has taken place since the order was made. A “material change” is interpreted as a change, which if known at the time of the order, would have resulted in a different order being made. The loss of employment (or even a reduction of income) beyond the payor’s control would generally justify a variation of child and/or spousal support in ordinary times. To date, there is no reason to believe that the loss of employment or income resulting from the pandemic would be any different. That said, support payors should be careful in navigating a reduction of support. At all times, they should make good faith efforts to be transparent and continue paying what is affordable to them. For example, if a support payor underwent a 40% loss of income as a result of COVID-19, a good faith effort would be to negotiate a roughly 40% reduction to their current support obligations. Practically speaking, however, this may not necessarily be feasible. The support payor’s remaining monthly expenses (such as rent/mortgage, utilities, car insurance, debt payments, etc.) have not automatically dropped by 40% as well. It will be important for the support payor to alleviate their losses as much as possible, for example, by applying for emergency relief from the government where appropriate, deferring debt payments and insurance premiums where possible and looking for other employment in the meantime. When the courts resume regular function, many of these support payors will need to begin court proceedings to formally vary their support obligations or any arrears that accrue over the ensuing months. A payor’s good (or bad) faith efforts to continue paying support will likely be a factor considered by the court when addressing the issue. For more information about child support or any other family law related issue, please contact the author of this blog post, Mason Morningstar at mason.morningstar@devrylaw.caor 416-446-3336. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, Family LawMay 4, 2020September 30, 2020
How is COVID-19 affecting child and spousal support in Ontario? The coronavirus pandemic has brought far-reaching economic shock waves across the country. Over one million jobs have been lost in Canada due to COVID-19 in the month of March alone. As this crisis continues and more jobs and businesses evaporate, support payors and support recipients are going to feel the financial strain. If you are a support payor pursuant to a court order, child and spousal support must still be paid despite the current state of affairs. Each region has its own notices and practice directions regarding support issues. Since April 6, 2020, the Notice to the Profession for the Central East Region which includes Whitby, states that the following matters are eligible for a hearing in writing or virtually before a judge: 14B motions requesting consent Orders on issues such as support – a Support Deduction Information Sheet (“SDIC”) is required to assist in completion of a Support Deduction Order (“SDO”). If one or more than one party is represented by counsel, a draft Order is to be submitted with the SDO. Consent Motions to Change (Form 15D), if a party is represented by legal counsel then the SDIC and SDO are to be filed. Case Conferences upon request by 14B, if granted, are limited to 30 minutes unless permitted otherwise by the triage judge and only 1 or 2 pressing issues can be conferenced which includes financial issues that do not meet the stringent urgency test. Before proceeding with motions to the Court, first determine if you are eligible for any Federal government relief programs such as the CERB or Wage Subsidy Program. Eligibility may allow you to at least continue partial payments. Though, keep in mind that under Section 11 of the COVID-19 Emergency Response Act, CERB payments cannot be garnished by the Family Responsibility Office (“FRO”) at this time. The next step would be to explain your financial situation to the person you are paying support to. Cooperate as much as possible in an attempt to agree to a temporary reduction of support and/or to pay out any arrears with a modified payment plan if and when you are able to regain employment. Once an agreement is made, request a consent motion for an Order to reflect the temporary agreement regarding support arrangements during this time. The Family Responsibility Office (“FRO”) has confirmed that they will not be sending any new notices of driver’s licence suspensions and are in the process of cancelling notices that were previously sent in order to reduce the number of urgent refraining motions. This means that motions to vary or stop support payments will unlikely be considered “urgent” enough to be heard by the court at this time unless the payor is in “dire financial circumstances”. In Theis v. Theis, 2020 ONSC 2001, the support payor mother brought an urgent motion requesting that her share of the sale proceeds of the matrimonial home be released. She was a small business owner who was forced to shut down due to provincial restrictions and her revenue had dropped to zero. Unfortunately, she failed to provide evidence of “dire financial circumstances” warranting an urgent motion including her: her previous income before the restrictions; her total income now from all sources; her personal and business expenses; the extent of her resources more generally; an updated sworn financial statement; and the results of any applications for federal relief funding and timelines. As a result, due to the dearth of evidence in her motion materials, no finding of dire financial circumstances could be found and her motion was dismissed. The key take-away is try to negotiate a temporary settlement and bring a motion on consent or as a last resort bring an urgent motion if you have enough evidence to demonstrate dire financial circumstances. Contact family lawyer Andreina Minicozzi at 289-638-3179 or andreina.minicozzi@devrylaw.ca if you have more questions about support obligations during the coronavirus/COVID-19pandemic. By Fauzan SiddiquiBlog, COVID-19, Family LawApril 27, 2020September 30, 2020
Our Child Has Come to Live with Me, How Do I Stop My Child Support Payments to My Ex? Child support payments are based on where the child actually lives, not where a Court Order or Separation Agreement says that they are living, or should be living. Since child support is the right of the child, it is also irrelevant as to why the child is residing in one place as opposed to another; child support goes to the parent with whom a child is primarily living with. However when a child’s situation changes, the Family Responsibility Office (FRO) does not have the authority to stop collecting child support. As with many instances within family law, there are various ways in which one can resolve a situation. If both parents agree that the child has changed homes, is not longer entitled to child support (note: child support does not always end when a child turns 18), or is living on his or her own, then they can write to the FRO and request a cease on further child support payments. Subsequently, the FRO will verify the information with each parent before honouring the request. Alternatively, the receiving parent can obtain a withdrawal form as a means of notifying the FRO. When a child changes residence, child support payments should not be terminated. The parent whom the child was living with initially, is now responsible for making child support payments. Because of this, some parents are reluctant to acknowledge that a child has moved. However, not paying child support, and not agreeing that you should stop receiving child support, is highly frowned upon in family court. Cases whereby one parent refuses to adhere to the guidelines, often results in having to sit in front of a judge. Only a judge can look at the circumstances and determine which parent should be paying support and how much (it is also possible to arbitrate those issues if both parents agree) The judge will inform the FRO on how to proceed. Many people may avoid seeking the appropriate change to child support because of the complexities of the family court’s procedures. The Ontario Government’s Child Support Online Recalculation Service only changes support when a support payer’s income changes in a particular way; it cannot change support because a child’s circumstances changed. Fortunately, there is a simplified court procedure for changing an existing support order. That procedure is based on the premise that there is no dispute about the facts of the case. Where a child has clearly changed homes, that fact should be clear to the Court. Ideally, when a parent serves a “Motion to Change Support”, that will be enough for the other parent to acknowledge the child has moved and agree to a change in support. A party who fails to acknowledge the obvious and is ultimately forcing a parent through the court process, can expect to pay the majority, or all, of the other party’s legal fees. Certified Specialist in Family Law John Schuman, has extensive experience assisting complicated child support and custody/access parenting matters. Contact John Schuman at 416-446-5869 or john.schuman@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawDecember 12, 2019July 5, 2023
When Can I Stop Paying Child Support? Many payer parents in Ontario mistakenly assume that child support automatically ends when their child turns 18. The law, however, says otherwise. The basic premise of child support is to ensure that children benefit from the support of their parents when they are unable to become self-sufficient. Viewed in this light, the question of age becomes less important than the child’s ability to support herself. In Ontario, we normally look to three statutes when dealing with child support: the Federal Child Support Guidelines, the Divorce Act, and the Family Law Act. The Guidelines largely provide a framework for determining the amount of child support to be paid once it is established that the child in question is entitled to support. When dealing with adult children, the Family Law Act explicitly states that they remain entitled to child support where they are enrolled in a full-time program of education. The Divorce Act entitles adult children to support where they are “unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”. Case law has long since accepted “other cause” to encompass children pursuing full-time education. The meaning of “full-time” education causes further confusion. Courts have found children to be enrolled in a full-time program, despite taking less than a full course load. Generally, this is the case where the child’s participation remains consistent with the program’s objectives. This vague interpretation can cause uncertainty – where there is uncertainty, courts generally err on the side of providing children with support. Further, a break in the continuity of the child’s education does not necessarily terminate support. It is common for children to enroll in a post-secondary program only to realize that their chosen program is not for them. They may then take a semester or a year off before changing programs. While child support would likely end for the period during which the child was no longer enrolled in school, the child can re-qualify for support once she enrolls in another program. The longer the child remains out of school, however, the greater the expectation will be for her to become self-sufficient. Courts have also held in some circumstances that child support should continue for a brief period of time following a child’s completion of post-secondary education, to support the child’s transition to the workforce. It is reasonable to expect a brief amount of time for the child to secure employment. In addition to the basic table amount of support, the payor may be required to contribute to the child’s education expenses, such as tuition, textbooks, meal plans, rent, etc., in accordance with section 7 of the Federal Child Support Guidelines. These are referred to “special or extraordinary expenses”. This exercise may be more complex, as it requires a proportional calculation of the expenses based on both parties’ incomes, and an accounting of the child’s obligation to contribute to her own education expenses. However, this is often painlessly navigable with a knowledgeable family lawyer. Lastly, some ex-spouses prepare separation agreements detailing a “terminating event” for child support. A standard agreement may have child support terminating once the child reaches the age of 21, or obtains a post-secondary degree. Notwithstanding the validity of this type of agreement, the courts retain the authority to decide not to be bound by these terms. Terminating child support is often more complicated than it seems at first blush. If you are considering terminating your child support payments, or your ex-spouse has stopped making payments to you, contact Mason Morningstar of Devry Smith Frank LLP for help determining your rights and obligations in this regard. mason.morningstar@devrylaw.ca or 416-446-3336 By Fauzan SiddiquiBlog, Family LawFebruary 8, 2019July 5, 2023
I Have Children From a Previous Relationship. I’ve Since Remarried and Have Children with My Current Wife. How is Child Support Calculated for My Eldest children? In recent years, it has become more commonplace to see “complex” families where one (or more parents) have children with several other parents or is a step-parent to children in other families. Therefore, how child support is calculated when one parent has children with several other parents is an increasingly common question. The solution is different for parents who are the biological (or adoptive) parent to all the children or the biological parent for the child (or children) and a step-parent to other children. Generally, child support is not payable when you are living with, and sharing the household expenses for the other parent and the children. This is a situation that would most likely be the case if you are still married and not separated. Biological and Adoptive Parents First, biological (and adoptive) parents always paytable support under the Child Support Guidelines. There are some possible adjustments where: The payer’s income is over $150,000.00 (pursuant to section 4 of the Child Support Guidelines) Where paying support causes undue hardship – see section 10but note that proving undue hardship in court is difficult There can also be adjustments for shared or split custody but for tax reasons it is better for both parents to pay full support in that situation. When the child support payer has all the children with one other parent, calculating child support is significantly easier. The parents can obtain a version of the Child Support Tables and locate the table that pertains to their current situation. For instance, if there are three children, with just two parents, it is a simple matter of looking at the table for three children. Things work differently where the support payer has children with several different parents. The Child Support Guidelines work on the premise that children should not be disadvantaged by their parents’ choices, and there are some expenses that can be shared between kids in the same family. That being said, where there is multiple support receiving parents, the support payer pays the full table amount for the number of children with each parent. Having children with several different parents can mean having to pay a substantial amount of child support. However, there can be an adjustment for undue hardship in extreme circumstances, but again, this can be difficult to demonstrate and prove. It is preferable for the parents to make financial sacrifices, not the children. Child support where there are multiple parents or more complicated parenting arrangements can be difficult to determine. There are a lot of factors that need to be taken into account, and there may be additional ways that the law can help you. The best way to protect yourself, your children and your financial security, is to find out how the law applies specifically to your situation and what steps you should take. Speaking to a highly experienced lawyer, John Schuman of Devry Smith Frank will help alleviate some of the stress and complications that are often associated with family law matters. Call today at 416-446-5080 or 416-446-5847. Alternatively, email john.schuman@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawJanuary 31, 2019June 15, 2020
Am I on the Hook to Pay Child Support Retroactively? One of DSF’s Toronto Family Lawyers was recently asked the following question: Can child support payments be retroactive? My former spouse never claimed child support and on top of that refused to take support payments from me for years. Recently, my former spouse has gotten into some financial trouble and filed an application for me to start paying child support. Will I have to pay child support retroactively from the date of our separation or will it start from the date of the application? Their Answer: The short answer is it depends. Family Courts can order retroactive child support in certain circumstances. In 2006, the Supreme Court of Canada ruled on the issue of retroactive child support in D.B.S. v S.R.G. The Court looked at when retroactive child support can be ordered and in what circumstances. The Court provided a list of factors to take into account when child support can or should be ordered. Child support orders are made in accordance with the Child Support Guidelines. There is a table amount that is set out for various income levels and the amount of support is based on the income of the payor spouse and the number of children. The Guideline was introduced as a way to make child support as simple, objective and predictable as possible. In deciding whether or not retroactive child support should be ordered, the Court looked at four factors: Is there a reasonable excuse for the delay in making the application; What is the conduct of the payor parent? Whether or not the conduct was blameworthy; What are the circumstances of the child; and Will there be hardship caused on the payor parent by the retroactive payment? In deciding the quantum of the award, there are four possible dates that the retroactive child support can be awarded from. Retroactive payments can be awarded from the date: The application is made; Of formal notice to the payor parent; Of effective notice to the payor parent; or When the amount should have been increased. The Court imposed a three-year limit as a rough guideline for how far back child support can be ordered. To answer the question above, it is likely that a Court would order retroactive child support to the date of ‘effective notice’. Effective notice, as the general rule, is the date that there is an indication by the recipient parent that child support should be paid. It is not the date that legal action is taken, such as filing the application, but is the date that the topic has been brought up with the payor parent. Because there has been no blameworthy conduct on the part of the payor parent, there would be no reason to move away from the date of effective notice. In this circumstance, the parent would have to pay retroactive support payments from the date the former spouse brought up that he or she now needed the support payments. The requirement to pay child support is a free-standing obligation that can fluctuate over time with the income and circumstances of the spouses. You can read more on the topic here, on John Schuman’s blog. John Schuman is a Certified Specialist in family law and is the partner managing the Family Law Group at Devry Smith Frank LLP. If you have any questions about child support or family law generally, please visit our website and contact one of our Toronto family lawyers today. By Fauzan SiddiquiBlog, Family LawAugust 29, 2017June 18, 2020
How to Change Existing Child Support Payments and Visitation Agreements Family lawyer John Schuman was recently asked the following question: I want to change my child support amount and the visitation agreement. How do I go about doing that and what forms do I need? Answer By John Schuman: There are three ways to change child support: 1. If you and the other parent agree on the change – either because your income has changed or the children’s living arrangements have changed, you can do one of the following: Draft up an “amending agreement” to your separation agreement File a motion to change support on consent at the court, if you have a court order It can be dangerous to reduce your child support, even if your ex agrees. Without a formal agreement or court order, the other parent can go back and enforce the last formal agreement or court order, and you could end up owing a lot of money. 2. If the other parent does not object and you do not fall into one of the exclusions, you can use Ontario’s Online Child Support Calculation Service to adjust support. You cannot use the service if: You have shared custody Do not earn most of your income from a salary, or earn more than $150,000.00 per year. If a child is 17.5 years old or older and is still entitled to support. In these situations, child support may be more than a simple calculation. But, if your child support will be a simple calculation, for an $80 fee, the Ministry of Finance will get both parents’ tax returns and do the support adjustment for you. 3. If neither of the above options works for you, then you will have to bring a Motion to Change Support in Family Court. The procedure to change support is usually simpler than an initial divorce of Family Court Application. It may involve 2 appearances or less. Either parent can also use this process to change the support paid under a separation agreement if the other parent does not agree. To learn more about how to do this, listen to this podcast and watch this video. If you are not sure whether you should ask to change child support, listen to this podcast or watch this video on how to calculate your child support obligation. In any case, it is best to speak to a family lawyer about your situation and figure out which option works best for you. You may be able to save on legal fees by using unbundled services. Changing “visitation” or the “parenting schedule” may not be as straightforward. If you cannot agree on changes to visitation or the parenting schedule, then you should consider using a parenting mediator, or one of the other lower-conflict ways of resolving parenting issues. Finding non-confrontational ways to resolve parenting issues, including the parenting schedule, is much better for the kids. If you find that the other parent is being unreasonable or not acting in the children’s best interests, then you may have to go to Family Court. If the children might be harmed, or if you are not seeing them at all, you may be able to get an Emergency Custody Order. Otherwise, you would use the same “Motion to Change” procedure that applies for support. In making any decision about children, judges only do what is in the child’s best interest and have factors to consider in making that determination. Since those factors are what a judge will use, you should take them into consideration when deciding what kind of visitation or parenting plan to seek. There are many different types of parenting arrangements after separation and what works best depends on the child. If you are not sure or have concerns, then it is important to talk about your specific situation with a family law lawyer. In doing so, you will ensure the best result for your children. You can get a lot more information about Ontario Family Law issues, including a further explanation of child support, family court, child custody, and parenting legal issues by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or ordering the paperback version. However, it is always best to seek experienced legal support by meeting with a good family law lawyer. John Schuman is a Certified Specialist in Family Law. He is the partner managing the Family Law Group at Devry Smith Frank LLP, a full-service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email john.schuman@devrylaw.ca Listen to the Ontario Family Law Podcast! Please note that this is for informational purposes only and does not constitute legal advice to you. Legal advice pertaining to your particular situation can only be provided by a lawyer who has met with you to obtain all pertinent background information necessary to give you a formal legal opinion. For formal legal advice, hire a lawyer (many give a free first consultation). Contact John P. Schuman, C.S., or search the Lawyer Directory. By Fauzan SiddiquiBlog, Family LawApril 24, 2017September 9, 2022
Does Child Support Affect Child Custody or Access? Every family law professional, and every family court judge, will tell you that child custody and access are completely separate issues from child support. How child support is determined is completely different from how judges decide who gets custody. However, there are at least two ways in which child support can influence parenting issues in family court cases: Failing to pay appropriate child support immediately gives the impression that a parent does not care about the child. That can affect how a Family Court Judge or Family Arbitrator views that parent’s fitness as a parent. Shared Custody/Shared Parenting changes the way Child Support is Calculated. Sometimes people view shared custody as much as a financial arrangement as a parenting arrangement in the children’s best interests. However, things can work out differently than they expect. The Importance of Paying Child Support Right From Separation Child support is the right of the child. The right of children to share in their parents’ wealth exists from the moment of separation. It is a big mistake for a parent to withhold child support to the parent with whom the children primarily reside. It costs a lot of money to raise children. They have on-going needs. When one parent leaves the children with the other parent, that parent must recognize that the children’s needs continue. That means paying appropriate child support right from separation. You can use online tools to figure out your base child support obligation. When parents do not recognize that their children still have financial needs after separation, by immediately paying appropriate child support, Family Court Judges interpret that as a parent not caring about the children’s needs. Judges view parents who do not care, or understand, their children’s needs as poor parents – parents who cannot make good decisions for their kids, and therefore should not have custody. That leads Family Court Judges to believe that parents who do not immediately start paying appropriate child support as parents who should not have custody. That, of course, can be an incorrect assumption by the Family Court Judge. But a parent who starts off giving the Family Court a bad impression of him or her as a parent will have a much harder time in their case. That parent has barriers to overcome to get the parenting arrangements that he or she wants – barriers that he or she would not have had if she or he had shown devotion to the kids right from the start by paying child support. You can make sure you are doing the right things after separation by speaking to a top family law lawyer, and by watching the video below that sets out some of the other mistakes that you need to avoid:https://www.youtube.com/embed/bgIewOxGDlw?rel=0 Under section 9 of the Child Support Guidelines, child support changes when the children spend close to an equal amount of time with each parent. The magic number is 40%. When a child spends 40% of his or her time with a parent, that parent no longer has to pay the table amount of child support, but pays another amount that reflects a fair sharing of the costs of raising that child. The principles for how parents should financially support their children in shared parenting situations were set out by the Supreme Court of Canada in the case of Contino v. Leonelli-Contino. To summarize, when children share their time close to equally between parents, the starting point is that the parents each pay the table child support to the other. However, the way that works out, is that the parent with the higher income pays his or her table amount of child support minus the other parent’s child support obligation. For some parents, they want to have the children for forty percent or more of the time so that they can get a “break” in child support. Several family court judges are suspicious when a parent seeks to move to shared parenting because they want the break in child support. if the judge believes that a parent is more interested in the break in child support, than in the child’s best interests, that judge will not order shared parenting. If a parent wants shared parenting out of a since interest in being very involved in the children’s lives and protecting their interest, that parent may actually want to offer to pay full child support so that the judge has no doubt about that parent’s motives and feels safe ordering shared parenting. In addition, a parent who wants a shared parenting regime should watch the video below, which sets out when shared parenting, and other parenting arraignments, work best for the children, to make sure that the plan is best for the children and the judge will see that too:https://www.youtube.com/embed/i8y37J0ipzU There are some additional consideration regarding child support in shared parenting situation. First, in Contino, the Supreme Court said that the ‘set off” of child support was only the starting point. If that approach did not result in the parents sharing the costs of raising the children in proportion to their respective incomes, then the Family Court should make a different child support order that does. For example, a Family Court Judge will not order “set-off” or reduced child support, where one parent continues to bear the bulk of the cost for raising the children. Set-off only works where both parents are not only sharing parenting time, but also sharing the costs of raising the children. A second consideration regarding child support in shared parenting situations is that it does not always save money. Kids can be expensive. When the children are being raised in two homes instead of one, the children’s expenses are often not divided in two, but multiplied by two. Each child may need two beds, two sets of clothes, two TVs, two gaming systems, two bicycles, two sets of toys, and the list goes on. In shared parenting, a parent may find that child support goes down, but the extra expenses that parent pays are much more than the decrease in chid support. Many parents in shared parenting think it would be “cheaper” to have the children live with the other parent and just pay child support, but cannot do that because of how involved they are with their children. A third consideration is that in several shared parenting scenarios the support paying parent may pay more support than when the children have one primary residence. This is particularly true when one parent makes a lot more than the other. In that situation, the “set off” of support may not result in much of a decrease in child support. However, because to the adjustments to tax benefits and deductions, and other cash flow considerations, when the Spousal Support Advisory Guidelines are applied, the decrease in child support is more than made up fore by an increase in spousal support – and spousal support may not necessarily end when a child reaches 18 or finishes school as is the case for child support. It is important to have a good family lawyer do the support calculations for you to figure out the most prudent way to arrange support in light of your family’s circumstances. Child Support and Child Custody Are Still Separate Issues Despite the above, child support and child custody are not legally linked. So, except for the circumstances described above, parents should not try to link them. For example, a parent cannot deny access because the other parent is not paying child support. Similarly, a parent is not “entitled” to see the children just because he or she is paying child support. How much time a parent spends with the children and when is determined based on what is in the child’s best interests, not based on how much child support that parent is paying, And telling the children how much support you are paying is never a good idea. That is involving the children in adult issues, which can only be harmful (and judges do not let parents see children if it is going to cause harm.) Judges will not order that the wealthier parent get the children because he or she will be able to give the children a better lifestyle. Child support is supposed to permit children to share in the wealth of both their parents. Saying the other parent is “too poor” to raise the children properly is a pretty good way to anger a judge and lose your case. Finally, paying child support does not mean that a parent gets to dictate how the other parent raises the children, or even how the receiving parent uses the child support. Unless a court or arbitrator decides otherwise, what a parent does during his or her “parenting time” is not the business of the other parent. After separation, parents do not get to control how each other uses their money, including child support. If a parent is using child support money to buy drugs or alcohol, or gambling it away, then the support paying parent may have a case to say that the receiving parent is a bad parent because of addiction issues. But, that determination is based on each parent’s parenting ability and the best interests of the children – not on a consideration of child support. There are a lot of things to consider in each of child support and child custody. There are more things to consider, and things get more complicated, when the two issues interact. In addition, a lot can change depending on the specifics of your situation. In these situations, you really need to set up a consultation with a good family lawyer to learn your rights and obligations in your specific circumstances. Make an appointment to meet with Certified Specialist in Family Law, John Schuman, by calling 416-446-5847 or emailing him. We respond to all inquiries promptly. By Fauzan SiddiquiBlog, Family LawFebruary 19, 2015December 5, 2020
