Child Support and Divorce in Ontario
There are important considerations about Child Support when filing for Divorce in Ontario.
The following is from Section 11(1)(b) of the Canada Divorce Act:
[In a divorce proceeding, it is the duty of the court] to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made. emphasis added.
In short, child support should be paid by the ‘non-residential’ parent in accordance with the Federal Child Support Guidelines.
Federal Child Support Guidelines
The Canadian government has established guidelines respecting the making of orders for child support. The “Guidelines” consist of a set of rules and tables for calculating the amount of support that a paying parent should contribute towards his or her children. For general information about child support in Canada, see http://www.justice.gc.ca/eng/fl-df/child-enfant/index.html.
How is the amount of child support determined?
Who pays child support depends on the child’s residential arrangements. The basic amount (referred to as the “Table amount”) is based on three things:
the payor’s income;
the number of children involved; and
the province or territory where the payor lives.
In some circumstances, the base amount can be increased or decreased. For example, the amount could be adjusted if the children have special expenses, such as childcare. The amount could also be adjusted to prevent financial hardship for a parent or the children. This might be fair when, for example, the parent paying the child support is suffering a hardship—perhaps because that parent is supporting a new family and has a lower standard of living than the parent receiving the child support.
Click the following link to access “The Federal Child Support Guidelines: Step-by-Step” published by the Department of Justice: http://www.justice.gc.ca/eng/rp-pr/fl-lf/child-enfant/guide/
Note: If you have a separation agreement for child support in an amount that is lower than the applicable Guidelines Table amount, when filing for divorce in Ontario, unless you can satisfy the judge that there are ‘special circumstances’ that directly or indirectly benefit your children, or that payment of the Table amount would cause an ‘undue hardship’* on the paying parent, the court may ignore the agreement and refuse to grant the divorce until support is paid in accordance with the Guidelines. Just because your agreement states that neither parent will be paying child support to the other is reasonable does not in an of itself make it reasonable. In my experience, many lawyers fail to explain this to their clients. Click here for more information on separation agreements. Even a prior ‘final’ court order could be ignored by the judge reviewing your divorce. (*See Section 10 of the Federal Guidelines re ‘undue hardship’.)
What about when the children live for half of the time with each parent?
There is a common misconception that in a 50/50 living situation, neither parent has to pay child support. Unless there are exceptional circumstances, the higher income earner should be paying the net difference in the parties’ respective Table amounts. Click here for more information on child support when the child lives with both parents equally.
Using ezDivorce when you have children:
If you are supposed to be paying child support and are not, or are paying less than what the Federal Child Support Guidelines say should be paid based on your income, the court will most likely refuse to grant your Ontario divorce until you start paying the proper amount – regardless of whether you have a written agreement or prior court order for a lesser amount! ezDivorce.ca will in most cases not assist with your divorce if you are not paying in accordance with the Guidelines. Contact Adam if this is your situation before getting started.
If you should be receiving child support but are not, or are receiving an amount that is less than what the Guidelines say should be paid, it is still possible that a judge may refuse to grant the Ontario divorce until you receive or at least pursue the proper child support amount.* If ezDivorce.ca files your divorce and this happens to you, you will either have to get your spouse to start paying the correct amount, or your will have to proceed with a separate application for child support. Note that ezDivorce.ca will not assist you with this separate application. You will be guided to information, guides and forms that are available on the internet from the Ministry of the Attorney General.
NOTE: DO NOT ASK IF YOU CAN JUST SAY PROPER SUPPORT IS BEING PAID. WE WILL NOT FILE A FALSE AFFIDAVIT WITH THE COURT.
In the required divorce papers, you will be providing information about the current arrangements for the support of the children – not what those arrangements were in the past or what they may be in the future – just what they are at that moment. There is nothing preventing you from changing those arrangements later if both spouses agree to something different.
Click here for more information about the Federal Child Support Guidelines