What is child support?
Child support (also known as maintenance) is the financial support for children that must be paid under a support order or an agreement. Child support is a fundamental legal right of every child and is a legal responsibility of each parent. Step-parents may be responsible for child support if they have lived with and contributed to the support of the child for at least one year. Child support ensures a secure, stable financial future for children following separation or divorce.
Child support is determined through negotiated or mediated agreement between you and your spouse, or by court order. It is based on the incomes and financial means of both parents including: whether one or both parents own businesses, hold substantial capital, investments, or trust interests, or is a professional with a ‘book of business.’ Child support payments can also be affected by the type of child custody or guardianship arrangements you have in place, especially if they increase childcare costs.
It is critical to seek legal advice in the matter of child support. Herr Law Group’s experienced child support lawyers are experts in this often complex, highly sensitive aspect of separation and divorce.
How do I calculate what I owe or what is owed to me?
Child Support amounts are determined with reference to the Federal Child Support Guidelines. To calculate child support, you first must know the paying parent’s gross annual income per year. You can find this information on line 150 of a tax return, or in the CRA’s Notice of Assessment. Another way to determine gross annual income is checking a full year of pay stubs and adding the total income before taxes were deducted. Some additional factors may also need to be considered, particularly where there are business interests.
Pros & Cons of using an online calculator
Once you have the paying parent’s gross income, you can use an online calculator to estimate the basic amount of child support. The online calculator is based on the federal child support guidelines and provincial support tables. The amounts in the tables are based on economic studies of average spending on children in families at different income levels in Canada. They are calculated using a mathematical formula and generated by a computer program. Also impacting child support calculations are custody arrangements like split custody, shared custody and primary custody.
Using an online calculator will only give you a basic child support calculation, and it may not be the exact amount required to be paid. Every family is unique in the expenses required to support a child. By consulting with the child support lawyers at Herr Law Group, you will have expert child support lawyers steer you through all aspects of child support calculation, especially if your financial situation is complex.
Link: Government of Canada’s Department of Justice child support table look up
How long do I have to pay child support?
At a minimum, if you do not have primary parenting time of your child, you will be required to pay child support until the child reaches the age of majority, which in BC is 19 years old. At 19 years of age the presumption is that the child is an adult who must support themselves. However, a person over the age of 19 who is unable, because of illness, disability or other reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians, remains a child for the purpose of receiving support. Post-secondary education is a commonly accepted reason for an adult child to still require some level of support.
A child who is making bona fide efforts to obtain a post-secondary education to set themselves up for success in adulthood can obtain child support while in school. In some cases, they can even be supported through two university degrees.
Herr Law Group child support lawyers have successfully handled hundreds of BC child support cases involving children who are both under and over the age of majority.
We know the courts balance what is reasonable by way of a contribution from the parents while also taking into account that the child must do their best to assist in paying for their education and completing it in a reasonable period of time.
What happens if my financial circumstances change?
A child support agreement or order can change should there be an increase or decrease in a parent’s income. Adjustments can also be made if parenting arrangements change, special expenses arise, or there are other significant changes. The Federal Child Support Guidelines stipulate you and the other parent can agree to change the amount of support in your current agreement by either updating the agreement in writing or creating a new agreement. The next step requires a court application to vary the original order.
When parents don’t agree on changing the original court order, one or both parents may make an application and ask the court to change it.
If a recipient parent remarries, the income of their new spouse will not affect the amount of child support received from the payor parent. If a payor parent remarries and has a new family to support, they still have to pay child support. However, if supporting two families results in undue hardship, it is possible to vary the child support order if it can be established the second family has a lower standard of living than that of the payor’s first family.
What kind of expenses are covered?
Child support is divided into two types:
Base Child Support is a monthly amount designed to assist with basic costs of raising children including food, shelter and clothing. The amount is based on federal Child Support Guidelines to create simplicity and uniformity in child support.
Extraordinary Expenses are those costs and expenses of raising children that are beyond the ordinary and are to be shared (usually on a proportion of total income) between the parents of the child or children. As per the Child Support Guidelines, these expenses must be necessary and in the child’s best interest, reasonable in relation to the finances of the child’s parents and consistent with the family’s spending pattern.
Extraordinary expenses can vary depending on the families unique circumstances, but may include:
Child care expenses – incurred as a result of the custodial parent’s employment, illness, disability, education or training for employment, such as day-care and before and after-school care.
Medical and dental insurance expense – that portion of medical and dental insurance premiums attributable to the child.
Medical and dental expenses (not covered by insurance) – uninsured health and dental expenses (that total more than $100.00 a year) including orthodontic treatment, professional counseling, therapy (physio, occupational or speech), prescription drugs, hearing aids, glasses and contact lenses.
Extraordinary school expenses – expenses for primary and secondary school (public and private schools) or other education programs that meet the child’s particular / special needs. This does not include ordinary, annual school fees for materials and supplies, lunches, bussing, etc.
Post-Secondary educational expenses – expenses for post-secondary school education including the cost of tuition, residence and books and supplies. This can (under the Divorce Act) include education beyond the first university level degree (ie. beyond age 23). The adult child is also expected to contribute to these costs as much as possible.
Extracurricular activities – expenses for children’s out-of-school activities including sports, clubs, lessons and other organized activities.
How is income calculated for child support?
Depending on the circumstances, it may be that only the income of the payor parent is needed. However, both parents’ incomes must be considered in the event of split or shared custody of the children, or where there are extraordinary expenses, undue hardship, or if a child is over the age of majority.
You will need to provide up-to-date income information which includes your tax returns for each of the three most recent years and the CRA notices of assessment. Business interests also need to be carefully scrutinized. Every family has a different financial situation; therefore you need to report the following information where applicable:
- Most recent statement pay slip, or a letter from your employer stating your salary or wages;
- Your corporation’s financial statements if you are self-employed or if you control a corporation;
- Income you received from employment insurance, workers compensation, disability payments or social assistance;
- Details of any business partnerships;
- Copies of any applicable trust settlement agreements, along with the trust’s three most recent financial statements;
- Information about your corporation’s pre-tax income if you are a shareholder, officer or controller of a corporation.
Income calculation is a complicated, yet necessary step during separation and divorce. Herr Law Group’s expert child support lawyers are experienced in all levels and types of family income, including high income and high net worth families.
What if my ex-spouse is not co-operative?
Unfortunately, in some cases, a parent may pay late or stop paying child support altogether. If you have a written agreement or a court order regarding child support, you are eligible to enrol with the Family Maintenance Enforcement Program (“FMEP”). FMEP is a free service offered by the BC Ministry of Attorney General which helps families and children entitled to support obtain the payments they are not receiving.
First, an agreement must be filed with the court registry in order to be enrolled with FMEP. Once you’ve enrolled with FMEP, it will enforce the order or agreement, and assist you with getting any child support that is due. FMEP will collect maintenance/support payments on your behalf, directly from the payor, and forward the payments to you.
In situations where the payor refuses to make child support payments, FMEP will take action to secure payments and arrears by either intercepting federal sources of income (income tax refunds or EI) or garnish wages, bank accounts and other sources of income. FMEP even has the power to suspend a passport, cancel a driver’s license, prevent new licenses to be issued, or issue a lien on the payor’s personal property.
Child support payments cannot be used as a tool to enforce parental access, nor can access be restricted to enforce payments. Just because the payor parent is late in making payments, or is not making payments at all, does not mean you can deny them parenting time or contact with the child. Conversely, just because the recipient parent is withholding parenting time does not mean the payor parent can withhold child support.