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What do you need to know about child support in the event of a separation?

Child support can be a source of conflict between parents who are going through a separation. Therefore, we feel it is important to mention here that child support is an undeniable right of the child according to the Child Law. Child support isn't something that a parent can deny after separation to influence settlement terms, for example. It's essential for parents who are in the process of negotiating child support payments to understand that the money that will be paid to the other parent is designed for the child. According to Child Law, parents are responsible for financially supporting their dependent children.

When it comes to support payments, conflict and confusion are likely to arise during the negotiation process. Parents may be uncertain about the amount that needs to be paid for child support, or even how the payor is to be determined. Recent changes in the Divorce Act could also accentuate confusion for couples who are considering separating.

Here, we help you understand what child support is, who receives it, who pays it, and how responsibility and payments are decided.

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A dependent child receives child support

Child Law states that parents are to financially support their dependent children. Therefore, it is crucial to understand what makes a child dependent in order to make the best decision for your child. 

The Child Law describes that a child is typically said to be dependent until they turn 18. However, there are many distinctions that parents need to understand. Age is not the only factor to determine whether your child is still financially dependent.

Indeed, a child may remain dependent after their 18th birthday if they have a disability or an illness. In the case of disability or a chronic illness, the age of your child does not necessarily affect the decision. A child may remain dependent for their entire life, including their adult life if their health condition does not permit otherwise. 

Additionally, a child who is attending school full-time even after turning 18 remains dependent on their parents for financial support. A child who is diligently and actively pursuing post-secondary studies will be in need of financial support. Post-secondary child support typically lasts until the child turns 22 or gets a diploma or a degree. It is worth mentioning that university enrollment only does not justify a request for child support. A judge will demand to see evidence that the child is also engaged in the pursuit of their studies. 

Alternatively, children aged under 18 may not be considered dependent. If a child is aged between 16 and 18 and already married, they do not depend on their parents any longer for financial support. There is also another case where a child voluntarily withdraws from parental control by leaving their home. This only applies to children who are aged 16 or over and have chosen to leave on their own accord. 

However, Child Law is strict on the definition of voluntary withdrawal. If a child is forced to leave home or kicked out, parents cannot deny child support. Similarly, when the living conditions at home are so unbearable that the child feels compelled to leave to preserve their mental and/or physical health, parents remain responsible for providing financial support. 

What exactly is child support?

Child support refers to the money that one parent pays to the other parent. The money is designed to be used to cover the costs of caring for the child. Generally, Child Law states that child support is to be paid by the parent who spends the least amount of time with the child. The parent who looks after the child most of the time will receive the child support payment on behalf of the child. The payment is to spend solely and entirely on pre-determined child support expenses. The parent cannot spend child support money on expenses that are not related or relevant to the process of caring for the child. 

In the event where both parents spend the same amount of time with the child, the parent with the highest income will still have to pay child support. 

It is important to acknowledge that the definition of a parent is not as strict as to reduce only birth parents to provide child support. Adoptive parents, non-birth parents, and even step-parents may have to make child support payments depending on their situations. Some elements can also influence the decision, such as parenting arrangement (more on this later), income changes, and sudden changes in the child's financial dependency. Parents who are in the process of separating can also use a separation agreement to settle child support amount, purpose, and frequency before going to court. The terms will be reviewed by the court according to the Government of Canada's child support tables and Child Support Guidelines. 

Who is the payor parent according to Child Law?

The parent who pays child support is called the payor. As mentioned above, the payor parent doesn't need to be the birth parent. This will be defined by the situation before and during the separation. Individuals who are going through a separation must provide financial support for the child even if they are not married to the other parent or not a birth-parent. 

Child Law explains that parents have to provide child support even if: 

  • They have other children from another relationship with someone else,
  • They didn't live with the other parent,
  • They didn't have an ongoing relationship with the other parent, 
  • They were not married to the other parent, 

Additionally, the payor parent needs to understand that child support and parenting time (formerly called child access before the change in the Divorce Act) are two different things. The payor can't deny child support even if they do not see the child or do not live with the child. Both are the rights of the child, and they do not affect each other. For instance, a parent who doesn't have sufficient parenting time can't stop child support payment. Similarly, if a parent fails to make child support payments, this will not affect their parenting time. 

There are special circumstances where child support payments can be amended and reviewed by a judge to address sudden changes in the payor's situation. A parent can also request support with regard to parenting time, for instance, if they feel that their child could be at risk with the other parent. In such cases, a parent can refuse to allow parenting time and contact child protection services. However, at no point can a parent make unilateral decisions to change child support money for any reason without referring to the court. 

How much child support do I need to pay?

The Government of Canada provides child support tables to calculate the relevant child support amount in terms of monthly payment for a set number of children. Reference monthly amounts are also determined in the Child Support Guidelines, which calculates the amount per province. For fairness, the amount also refers to the gross annual income of the payor parent. 

If you are the payor parent, you will need to provide detailed information about your income. The court will use any of the two following methods to define your gross incomes (the income before taxes and other deductions). They can use your pay stubs for a full year, ensuring they add up all the earnings before deductions. Alternatively, the court can also refer to line 150 of your income tax return or notice of assessment from the CRA (Canada Revenue Agency). Further information about your income can be provided using: 

  • Financial statements from any business you own, 
  • Proof of income from a trust organization, 
  • Relevant statements from worker's compensation, pension, social assistance, employment insurance, and even disability payments.

It is important to realize that the other parent could become suspicious if the information provided doesn't show the whole picture of the income you could be making or make. A parent who suspects the payor of avoiding paying child support can ask the judge to impute income. When this happens, the judge will decide on what the payor earns or is able to earn with consideration to their work history, education, job opportunities, lifestyle, and past income. This can happen when the payor parent actively attempts to provide false information regarding their income by: 

  • Not actively looking for employment, 
  • Not reporting all the income, 
  • Knowingly sharing false information, 
  • Being intentionally underemployed, 
  • Working for cash. 

It is fair to say, however, that only the judge has the power to impute income. It isn't something that the other parent can determine or input without valuable evidence. A sudden change in the payor's circumstances is also something that a judge will consider before choosing to impute income. 

How is child support used? 

When it comes to the allocation of child support payment, the income of the parent who receives the payment is not relevant in defining how child support is used and how much should be paid. The courts assume that the parent caring for the child also contributes to the financial support. Therefore, child support amounts are not designed to cover 100% of the expenses for the child. They exist so that expenses can be shared fairly between parents. 

Typically, the basic monthly amount as determined by the child support tables and the Child Support Guidelines will cover the following essentials: 

  • The cost of the child's housing, which could translate into a share of the rent or mortgage, 
  • The share of bills for household expenses, 
  • A share of grocery, clothes, toiletries, and haircut expenses, 
  • A share of school-related expenses, including supplies and transport. 

There may also be additional expenses that do not appear on the child support tables. These are called special or extraordinary expenses and are explained in the Child Support Guidelines as an expense that is reasonably affordable and necessary for the child's best interests. Extraordinary expenses could relate to medical or dental insurance premiums, tutors or private school fees, extracurricular activities, daycare fees, health expenses, etc. If a child chooses to pay some of their own expenses, the amount will be deducted from what is left to pay by both parents. 

Are there cases where the payor pays less or nothing?

While parents are financially responsible for their children, the law also considers unique circumstances when a parent may not be made to pay for child support or may pay less than stated in the child support tables. This can happen for a variety of reasons. 

First of all, if the payor parent is a step-parent, they may not have to pay for child support. 

Additionally, parenting arrangements can have a huge influence on how child support is calculated and split. Indeed, shared parenting time, for instance, or formerly called shared custody, means that the child lives at least 40% of the time with each parent. It can affect how much a payor has to contribute to child support. Split parenting, formerly known as split custody, is when separated parents have more than one child together and each parent cares for at least one child most of the time. This means that both parents could be paying child support to the other parent. 

Can child support amounts change?

Child support payments can be changed to adjust to new circumstances. Special or extraordinary expenses, for instance, can be ad hoc expenses that will momentarily increase the amount. They are not part of regular payments, and will only appear when relevant. 

If the payor parent faces financial difficulties or undue hardship, they can refer to the court to ask for a lesser amount than what is due. Similarly, the receiving parent can also claim undue hardship if they are unable to support the child with the money they receive according to the Child Support Guidelines. It is worth noting that undue hardship can be tricky to prove, but when parents can evidence it, the judge can order the amount to be adjusted accordingly. 

If the court finds that a child is due retrospective support, the payor will have to provide financial support retrospectively. This refers to cases when the child has not received enough support in the past. 

For more information or to negotiate child support during the separation, reach out to one of our expert lawyers at Verhaeghe Law Office in Edmonton, AB. We can also help you understand how the changes to the Divorce Act will affect your child support in the future. 

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