Who Pays and How Much?

While the determination of who is to pay child support and the amount of child support that is to be paid is not always obvious, it is actually one of the more straight forward issues in Ontario Family Law thanks to the Federal Child Support Guidelines.

Once the living arrangements of the children are determined the amount, or quantum of child support payable by a parent is determined by the child support tables found within the Child Support Guidelines.  The child support amount is based upon the number of children entitled to support and the gross annual income of the parent obligated to pay child support.

In the event the children are to have their primary care with one parent, which is defined as greater than 60% of the time, the other parent is legally obligated to pay child support based on the tables found within the Child Support Guidelines.

In the event of a shared parenting situation whereby each parent has care of the children at least 40% of the time, S.9 of the Child Support Guidelines is applicable and some form of a set off of child support will usually apply.

Does the Table Amount Within the Child Support Guidelines Always Apply?

Incomes Over $150,000 Per Year:

For the most part yes, however there are some exceptions.  For example where the payor spouse’s income is greater than $150,000 per year there is some discretion found within Section 4 of the Child Support Guidelines.  The Court may adjust the amount of additional support beyond the table amount associated with the first $150,000 of income.

For the child support associated with the balance of the spouse’s income beyond the first $150,000, if the Court considers a strict application of the table amount of child support to be inappropriate the Court may set the additional amount it considers appropriate having regard to the conditions, means, needs and other circumstances of the children who are entitled to the support  and the financial ability of each spouse to contribute to the support of the children.

Undue Hardship:

Another narrow and rarely granted exception to the table amount occur where a Court believes that paying the table amount will cause the support payor undue hardship.  The discretion for the Court to stray from the table amount based on undue hardship is found within Section 10 of the Child Support Guidelines.

Section 10 of the Child Support Guidelines lists a number of criteria the Court may consider when considering an undue hardship claim, which includes:

a) an unusually high debt load incurred for the benefit of the family prior to separation;

b) unusually high expenses in relation exercising access to a child;

c) the spouse has a legal duty under a judgement, order or written separation agreement to support any person;

d) the spouse has a legal duty to support a child, other than a child of the marriage, who is under the age of majority, or over the age of majority but unable to obtain the necessities of life due to illness, disability or other cause; or

(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of lie duty to an illness or disability.

However, Section 10(3) of the Child Support Guidelines states that even where spouse is able to meet the first branch of the undue hardship test outlined above, the claim will also be denied if the Court is of the opinion that the household of the spouse claiming the hardship would, after determining the amount of child support,  have a higher standard of living than the household of the other spouse.

Case law with respect to the undue hardship claim has made it clear that there is a high evidentiary burden on the spouse claiming undue hardship and the exception is only granted in only the clearest of cases where both branches of the test are satisfied.

How Long Can A Parent Expect To Pay Child Support?

A “child of the marriage” pursuant to the Canada Divorce Act is defined as “a child of two spouses or former spouses who, at the material time,

a) is under the age of majority and who has not withdrawn from their charge, or

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge.”

There is no clear bright line test under the Divorce Act as to when child support is to terminate.  A child who is over the age of 18 but is continuing his or her education at College or University within a reasonable time after graduating high school is usually considered to be a child of the marriage and entitled to child support because at that point they are considered unable to withdraw from parental charge.

Case law would suggest that provided a child has enrolled in post-secondary education within a reasonable time after graduating high school they will be considered a child of the marriage at least up to the point they have earned their first degree or diploma, and in some cases beyond that into graduate studies if the circumstances are justified.

For children of unmarried spouses section 31 of the Family Law Act is applicable and the language defining the child support obligation is slightly different from that within the Divorce Act:

“31(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.”

While a child is generally entitled to child support while they are completing their post-secondary education there is some discretion within Section 3(2) of the Child Support Guidelines for the Court to determine the quantum or amount of child support that may be appropriate for children over the age of majority:

“3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is:

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.”

Generally speaking a parent’s legal obligation to continue to provide financial support for their children will continue at least until that child has completed their post-secondary degree or diploma.

Serge Ettinger is a lawyer in Thunder Bay Ontario practicing primarily in the area of family law.  If you are dealing with a family law issue in the Thunder Bay, Ontario area call Serge Ettinger Law Office Professional Corporation for a consultation today.

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