Child support is money that a parent pays to help support his or her child financially after a separation or divorce. Child support is considered the right of the child, though it is almost always paid to the other parent. Claims for child support may be determined under the Divorce Act, if the child’s parents were married, or under the Ontario Family Law Act, if the parents were not married.
While the rules under the Divorce Act and the Family Law Act may differ slightly, both statutes have adopted Child Support Guidelines, which govern the determination of child support in Ontario. The Guidelines consist of rules that are used to calculate how much child support will be paid and these Guidelines include tables that show how much the paying parent will pay to the recipient parent each month.
The table amount of child support is the basic amount that is paid each month. The tables consist of a sliding scale that provides for increasing or decreasing amounts of child support depending upon the paying parent’s gross (before tax) annual income, the province or territory where the paying parent is living, and the paying parent’s number of dependent children. The tables differ across each province and territory, as each table takes into account the different standard of living and tax rates for each particular province and territory.
An order for child support may also contain a retroactive component, which is child support payable for a period preceding the commencement of an application for support.
The Child Support Guidelines also contain rules for calculating contributions to ‘special or extraordinary’ expenses (also known as “s. 7 expenses”), determining whether or not there is undue hardship and a reason to deviate from the table amounts, and calculating support amounts in cases of split or shared custody. (Split custody involves a situation where one child lives with one parent and the other child lives with the other parent. Shared custody refers to those situations where the child or children reside with both parents at least 40 per cent of the time).
The Divorce Act and Family Law Act contain provisions as to when and how long child support is payable. Generally, child support is payable while a child is of minor age (i.e. until a child reaches 18 years), but can extend beyond the age of majority if the child remains dependent. Usually, child support remains payable if the child is still in school, or cannot support him or herself because of an illness or disability.
On an application for child support under the Family Law Act, the Ontario Superior Court of Justice has significant powers, as follows:
(See the Family Law Act, R.S.O. 1990, c. F.3, s. 34 (1)).
However, unlike the Ontario Superior Court of Justice, there are limitations on the jurisdiction and powers of the Ontario Court of Justice, such that the Ontario Court of Justice shall not make an order under clauses (b), (c), (i), (j) or (k) except for the provision of necessities or to prevent the dependent from becoming or continuing to be a public charge, and shall not make an order under clause (d) above. (See Family Law Act, R.S.O. 1990, c. F.3, s. 34 (2)). For these reasons, it is extremely important to consider the limited powers of the lower court when commencing an application for support.
Spousal support is the payment by one spouse to the other to provide financial assistance after the breakdown of a marriage or common law relationship. If the parties were married, spousal support can arise under the Divorce Act or the Family Law Act, whereas a common law spouse can only seek spousal support under the Family Law Act. Under the Family Law Act, an unmarried spouse must have cohabited continuously for at least 3 years in a conjugal relationship, or the parties must have been in a relationship of some permanence if they are the natural or adoptive parents of a child, in order to qualify for spousal support. Note that the law does not distinguish between heterosexual and same-sex couples.
It is not enough to meet the definition of a spouse to qualify for spousal support; a claimant must also satisfy one of the grounds to be entitled to support. These grounds are generally the same between the Divorce Act and Family Law Act, though the language used to describe the objectives of spousal support vary. Jurisprudence has clarified that there are 3 possible bases for spousal support entitlement:
Compensatory spousal support is appropriate where a spouse has suffered economic disadvantages as a result of the marriage/relationship or has contributed to the economic advantage of the other spouse. It is most likely to arise where the parties expressly or implicitly agreed that each spouse would adopt certain roles in the marriage (i.e. bread winner/caregiver) or make particular sacrifices (with respect to career/education) for the betterment of the family. Often one party had to forego career advancement opportunities or work part-time instead of full-time because of child care obligations and to permit the other spouse to be fully committed to his or her job. Spousal support in this instance is intended to compensate the spouse who is at a disadvantage due to the decisions or agreements made by the parties.
Non-compensatory or needs-based support takes into account the needs, means and other circumstances of the spouse to determine if he or she is able to support him or herself at the end of the relationship without the assistance of the other party. This often arises because the other spouse is not capable of becoming immediately self-sufficient (from an income perspective) after the end of the relationship. This could be due to age, health, or lack of job skills/experience.
Contractual support is only appropriate where the parties have already entered into an agreement that provides for spousal support on separation.
If a spouse is able to satisfy one of the grounds for entitlement, then the analysis turns to quantum (amount) and duration (length of time) of support. The Divorce Act and Family Law Act provide an enumerated list of factors that should be considered in setting the appropriate quantum and duration of support. The legislation requires a consideration of the condition, means, needs and other circumstances of each spouse as well as the length of time the spouses cohabited, the functions performed by each spouse during cohabitation, and any agreements (Divorce Act s. 15.2(4); Family Law Act s. 33(9)). These factors assist courts and family law practitioners in interpreting the support results produced by the Spousal Support Advisory Guidelines. The Guidelines take into account which province the parties reside in, the length of the relationship, the ages of the parties at separation, whether and how much child support will be paid, and the parties’ income levels. The Guidelines produce a range of three levels of support (low, medium and high), a suggested lump sum amount, and a recommended duration of support (ranging from months to indefinite). The shorter the relationship, the shorter the duration of support is expected to be. If the parties had a long period of cohabitation and the separation occurred late in life, then support is likely to have an indefinite duration.
Child and spousal support claims can be difficult to manage without legal advice and guidance. At Ambrosino Law Group, we have over 20 years of experience expertly handling child and spousal support matters for our clients. Our lawyers and supporting team are experts at helping you understand your rights and obligations, and advocating on your behalf. Please contact us to learn how we can help you bring or defend a support claim.