Shared living arrangements and child support in Ontario
There is a common misconception that in a shared or joint (“50/50”) living situation, neither parent has to pay child support. Unless there are exceptional circumstances, according to the Federal Child Support Guidelines, the higher income earner should be paying the net difference in the parties’ respective Guidelines Table amounts. Note: This applies if each spouse has the children for more than 40% of the time. See our page on child support.
If your response to this is: “This does not apply to my situation because we have a separation agreement drafted by lawyers in which we agreed that no support will be paid by either parent“, you may be surprised to learn that a judge considering your divorce may ignore that agreement. Just because your agreement states that the arrangement 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.
Note: all of the following information can be found through links provided on the Ontario Ministry of the Attorney General’s and the Canada Justice Department’s websites: https://www.attorneygeneral.jus.gov.on.ca/english/family/ and http://www.justice.gc.ca/eng/fl-df/child-enfant/index.html
The following is from Section 11(1)(b) of the 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.
Section 9 of the Federal Child Support Guidelines states:
9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account:
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
In a straight, 50/50 arrangement, the higher income earner would normally be ordered to pay the net difference in the parties’ respective applicable Table amounts, unless there are ‘special circumstances’ that directly or indirectly benefit your children, or if the payment would cause an undue hardship on one parent. See Section 10 of the Federal Child Support Guidelines re ‘undue hardship’.
For a generic, 50/50 example, let’s say that: (a) there are two children; (b) Parent 1 earns approximately $100,000 per year; (c) Parent 2 earns $50,000; and (d) the parties live in Ontario:
Step 1: Determine the applicable Federal Child Support Table amount for each parent as if the children resided full-time with the other parent (see http://www.justice.gc.ca/eng/fl-df/child-enfant/2017/look-rech.asp#Lookup)
Parent 1 Table amount: $1,416
Parent 2 Table amount: $ 743
Step 2: Determine the ‘net difference’ by subtracting the lower amount from the higher amount: $673
Parent 1 pays Parent 2: $ 673
In this ‘generic’, no special circumstances, no undue hardship, example, Parent 1 would probably be ordered to pay Parent 2 child support of $651 per month in a contested application re child support.
If Parent 1 was the one to file for divorce, it is pretty much guaranteed that unless there is a recent court order ordering a lower amount, the judge will not grant the divorce until her or she is paying in accordance with the Guidelines. (The judge would likely ignore a separation or other written agreement for a lower amount unless the agreement shows clear ‘special circumstances’ or ‘undue hardship’.)
If Parent 2 (or any parent who is not receiving the applicable “Table” amount from their spouse), were the one to file for divorce, the divorce could still be rejected/delayed by a judge (with the reason often being ‘child support is not for you – it is for the child’) unless and until you either: (a) get your spouse to pay the proper amount: (b) convince the judge that he/she should accept your determination of ‘special circumstances’ or ‘undue hardship’ to your spouse; or (c) start/complete a separate application for child support. This may seem extremely unjust to you – it is. Feel free to write to the Attorney General and your MP.
NOTE: DO NOT ASK ME IF YOU CAN JUST SAY PROPER SUPPORT IS BEING PAID. I CANNOT 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.