Child Support Lawyer in Toronto
If a couple has children, one of the many issues which must be resolved during a divorce is child support. All dependent children have a legal right to be financially supported by his or her parents. Parents who live together typically support their children together, and divorced parents usually have parenting plans in which a child has shared time with their parents.
The parenting plan (at one time called custody agreement) is generally written in a separation agreement or a court order, or, in some cases, could occur absent a court order or separation agreement (de facto).
Which Parent is Responsible for Child Support?
As noted, when parents divorce and the parents have joint custody and shared parenting time, the higher income parent pays child support. Child support can continue even when the parent remarries or begins living with another person. The Child Support Guidelines will determine the amount of child support to be paid.
Child support can be affected by the amount of time a child spends with each parent. In a shared custody situation where children are with both parents more than 40% of the time the child support amount is often reduced.
To determine the amount, first establish how much you would pay according to the Child Support Guidelines if the children were residing primarily with your spouse. Then determine the amount of child support your spouse would have to pay you if the children were primarily residing with you. When one amount is set off against the other, the amount remaining is usually the amount of support to be paid.
I say “usually” because judges hold a lot of discretion when determining child support in shared custody situations. Some judges will add a little something to the set off amount, some will use the exact set off amount and some will only reduce the amount slightly even if you care for the children more than 40% of the time. It largely depends on the judge and your situation.
To determine whether you or your spouse meets the 40% threshold, most judges just count the regular nights the children spend with each of you. For example, if the children are with you 6 out of 14 nights, they are with you 43% of the time and you have met the threshold.
Child support is usually applied for by one parent right after the separation, or when applying for a divorce, but can actually be done any time thereafter. Even in situations where the child spends an equal amount of time with both parents, the parent with the higher income may be required to pay child support. The parent paying child support is known as the payor parent. Parents are allowed to attempt to reach an agreement regarding child support on their own, but it has to be in line with the Guidelines prior to going to court, or the judge will determine the amount based on the child support tables.
How are Child Support Amounts Determined?
The child support tables show the basic amounts of monthly child support necessary to cover necessities such as food, a share of the monthly rent or mortgage, a share of the regular utilities, school supplies, and clothing. This amount is based on the gross annual income of the payor parent, as well as the number of children to be supported. Gross income is income before taxes and most other deductions. Each province and territory have their own child support table. In addition to the basic necessities, a judge can consider a number of factors when setting the amount of child support, including the following:
- The specific parenting arrangement (how much time the child spends with each parent, and which parent the child primarily lives with)
- Any special expenses, such as daycare for younger children, which is not covered in the child support table
- Whether there is any retroactive child support which accrued prior to the new court order
- Whether the payor parent has specific financial difficulties or undue hardships which make it difficult to pay child support
Some parents may attempt to avoid paying child support by working for cash, remaining deliberately unemployed, working part-time or working at a low-paying job, not reporting all income, or flat-out providing false information. If you believe the payor parent is engaging in any of these ruses to avoid paying child support, you can ask to impute income. This means the payor parent’s income will be determined by the amount the parent is capable of earning (or the judge believes he or she is actually earning). By looking at work history, education, job opportunities, lifestyle, and past income, income will be determined for the payor parent, and, thus, the amount of child support.
What is a Dependent Child?
Generally speaking, a child is dependent until he or she turns 18. This could be extended if the child has special needs or is still in school. A child is not considered a dependent if he or she is married or is at least 16 and voluntarily leaves home. In the case of a disability or chronic illness, a child over the age of 18 may remain a dependent for their entire life. A child who is diligently pursuing his or her first undergraduate degree is generally in need of support until that degree or diploma is obtained. This is generally until the child turns 22 or receives a degree or diploma. Barring any of these special circumstances, child support ends when the child turns 18.
Child Support Agreements
If the parents are able to work with one another, they can determine, child support by using the Child Support Guidelines. One parent should have the agreement put into writing by a family law lawyer, and the other parent should have his or her own lawyer review the agreement prior to signing it. This is to ensure the rights of both parents, as well as the rights of the child, are fully protected. If the parents are unable to reach their own Support Agreement, a mediator can help them come to an acceptable agreement. The third option is that both parents should hire their own family law lawyer; the lawyers will negotiate support terms that both parents can agree to.
Access and Child Support are Two Separate Issues
It is important to note that should the payor parent fail to make his or her child support payment, the other parent cannot deny regular access. Barring evidence to the contrary, it is generally assumed that children benefit from regular time spent with both parents. When one parent keeps the child from seeing the other parent, this is, in essence, punishing the child. There are legal channels to use when the payor parent fails to pay child support, however, denying access is not one of those.
How Musson Law Can Help with Child Support Issues
If you and the child’s other parent are simply unable to come to an agreement regarding child support, it could be time to step back and allow your lawyer to negotiate with the other parent’s lawyer. This removes much of the emotion from the situation and may result in an agreement you are both okay with. As Musson Law, we believe in the fundamental right of every child to be financially supported and the legal responsibility of parents to support their children to ensure a secure, stable future for the child. We can calculate child support as well as any special expenses based on your unique circumstances. Musson Law helps parents move forward in their lives by helping resolve the issues having to do with child custody and child support. With more than 15 years of experience negotiating successful settlements, we use all the tools at our disposal, including collaborative law, mediation, arbitration, negotiation, and, when necessary, litigation. Contact Musson Law today for all your family law needs.