Child support in Ontario is governed both by the Federal Divorce Act (RSC 1985, c 3 (2nd Supp)) and Ontario’s Family Law Act (RSO 1990, c F-3). Each if these acts also has their own set of Child Support Guidelines (Federal Child Support Guidelines (SOR/91-175) and Ontario Child Support Guidelines (O Reg 463/11)) that elaborate on how the law is to be applied. Generally, the Divorce Act will apply to married couples that are divorcing or modifying a court order from a previous divorce. The Family Law Act applies to parties that are unmarried, or sometimes applies to separated married couples who do not wish to divorce. Regardless of which statute applies to your situation, the laws governing child support are similar.
When a judge determines a child is eligible to receive child support, he or she will order the support payor to provide the child’s caregiver with the table amount of child support. The judge may also determine the child is eligible for special expenses.
When is a child eligible for child support?
Children are eligible for child support when they are considered dependants. According to the law, children are considered dependants when they are:
- unmarried and a minor;
- unmarried and enrolled in full-time educational program;
- unable, by reason of illness, disability, or other cause, to withdraw from care or to obtain the necessities of life.
Children who are 16 years of age and older, and have withdrawn from parental control on their own accord are not eligible for child support. This rule does not apply if the child has not withdrawn from parental control voluntarily, for example, if a parent has kicked the child out of the house.
Does a stepparent have to pay child support?
A stepparent may be ordered to pay child support for their stepchild if the court finds that the stepparent treated the child as part of his or her family. The Supreme Court of Canada has stated that a judge may use the following factors to evaluate the situation:
- The opinion of the child;
- Whether the child participates in the extended family the same way as a biological child;
- Whether the person provided financially for the child;
- Whether the person disciplines the child as a parent;
- Whether the person represents to the child, the family, and/or the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; and
- The nature or existence of the child’s relationship with the absent biological parent. (Chartier v Chartier,  1 SCR 242, at para 39 [CanLII])
How is income determined for child support purposes?
A support payor’s income is generally determined via their most recent income tax returns and pay stubs. However, in rare cases, a judge may find a reason to determine that person’s income is different from these documents. Common reasons the court may deviate from a parent’s income as determined by income tax returns and pay stubs are:
- A support payor is self-employed.
It is common in these cases to see personal expenses being written off as business expenses or dealing in cash that is not declared as income. Therefore, careful consideration of the payor’s finances must be taken into account when determining what their income for child support purposes is. In many cases, the support payor’s income will be declared as higher than what appears on their income tax return.
- A support payor quits a high-paying career, either to take a much lower-paying job or to be unemployed.
If a judge determines that the support payor is deliberately underemployed, they may determine their income for support paying purposes is at the level of their previous job, or at the very least higher than what is on their income tax return and current pay stubs.
How is the table amount of child support determined?
The table amount depends on a parent’s income and the number of children they are supporting. Both the Divorce Act and the Family Law Act have their own set of tables that state what a monthly child support payment will be. The Divorce Act‘s tables are available at Schedule 1 [ONTARIO] of the Federal Child Support Guidelines. The Family Law Act‘s tables are available at Schedule I of the Ontario Child Support Guidelines. These tables are updated frequently to reflect changes in the costs associated with raising a child.
Full Support Payment
If a child spends 60% or more of his or her time with one parent, that parent will be entitled to the full table amount of child support from the other parent.
Offset Support Payment
If a child spends between 40% and 60% of his or her time with each parent, an offset child support payment will be calculated. The offset amount is the difference between each parent’s table amounts.
Example: Offset child support between John and Jane Doe, 1 Child, Federal Child Support Tables (Calculated March 2016)
|John Doe||Jane Doe||Offset Child Support|
|Annual Income: $80,000
Table Amount: $724.00
|Annual Income: $45,000
Table Amount: $406.00
$724.00 – $406.00 = $318.00
John would owe Jane $318.00 per month in child support
Can a judge award a child support payment that is different than the table amount?
In extremely rare circumstances, a judge may decide to deviate from the table amount in determining how much child support should be paid. These two circumstances are discussed below.
High Income Payor
The first reason a judge may deviate from the child support guidelines is where the annual income of the paying spouse is above $150,000. If this is the case, if the judge considers the table amount inappropriate, he or she may make another order as follows:
- The table amount for the number of children under the age of majority for the first $150,000 of the payor’s income.
- For the remaining balance, the amount the judge considers appropriate, having regard to the condition, means, needs and other circumstances of the children entitled to support, and the financial ability to each spouse to contribute to the support of the children.
A judge may also deviate from the normal child support amount if there is undue hardship. Both the child support payor or the child support receiver may apply under this section. When an application is made, the judge applies the following test:
- Is there undue hardship? Circumstances that may indicate undue hardship include the following:
- The parent has unusually high debts from supporting the family before the parents separated or resulting from earning a living;
- The parent has usually high expenses in relation to exercising access to a child; or
- The parent has a legal duty to support another person.
- Does the person who is claiming undue hardship, after normal child support payments are applied, have a lower standard of living than the other spouse?
In this test, a judge must find that there is both an existing circumstance that causes undue hardship, and that the person claiming the hardship does have a lower standard of living than the other spouse.
Applications to find undue hardship are rarely successful. Even if one of the circumstances listed above is present and the judge determines that one household has a lower standard of living than another, he or she still has the power to conclude that no adjustment in support payments is necessary.
Even if the judge finds there is undue hardship, and the child support amount is adjusted, he or she may still impose limitations on the adjusted support payment. For example, the judge may specify that the adjustment will only exist for a certain period of time, and that after that period of time the child support will revert back to the table amount.
What are special expenses?
Special expenses are expenses for a child that are shared between a child’s parents and go beyond the normal monthly table amount. To award special expenses, a judge must be shown that the expense is in relation to the child’s best interests and that the expense is reasonable in relation to the means of the child’s parents and the family’s spending patterns prior to separation. Types of expenses considered under special expenses include:
- Child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
- The portion of the medical and dental insurance premiums attributable to the child;
- Health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
- Extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
- Expenses for post-secondary education; and
- Extraordinary expenses for extracurricular activities.
A judge will typically make an order for special expenses based on the average monthly cost of such expenses. He or she will then typically require for each parent to cover a percentage of these expenses based on each of their respective incomes. Usually, one parent will pay for all of the child’s special expenses directly and the other will provide their portion of special expenses in the form of a monthly support payment to the parent covering the expenses.
Example: Special expenses shared between John and Jane Doe
|John Doe||Jane Doe|
|Annual Income: $80,000
John pays 64% of special expenses
|Annual Income: $45,000
Jane pays 36% of special expenses
Can child support payments be varied?
Because the table amount of child support is based on a parent’s income, it is typically adjusted each year after the parents each receive their notice of assessment from the Canada Revenue Agency. Most separation agreements and court orders will contemplate these changes and require that the parents exchange their income tax returns annually.
Special expenses may be changed either by an agreement between the parents or by a court order. In order for a court to change special expenses, there must be a “material change in the circumstances” of the child. Therefore, it requires a major change in the child’s needs and the major change to the corresponding expenses that need to be covered. Common reasons for changes in special expenses include:
- A child begins a post-secondary education program;
- A child develops an illness or disability where healthcare expenses are not fully covered by the government or insurance;
- A child needs or requires extra academic help; or
- A child develops a special skill or talent that requires additional coaching, development etc…
Are child support payments tax deductible?
Child support payments are not tax deductible for the payor. Child support is not added to the gross income of the receiver for income tax purposes.
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