Overview
In Ontario, a parent can seek a court order for the other parent to pay child support. The Federal Child Support Guidelines and the provincial Child Support Guidelines outline guidelines that are utilized to calculate child support under the Divorce Act (for married couples – even if you’re divorced) and Family Law Act (for common-law couples) respectively. The amounts will vary depending on the number of children and the income of the payor.
Child support is deemed to be owed to the child, even though in most cases it is paid by one parent to the other parent. During a divorce or separation, parents cannot “barter away” their child’s right to support in a settlement agreement, and courts can intervene to override any such agreement. Child support is payable while the minor is a child or is enrolled in a full-time course of education, as long as the transitional period between high school and post-secondary education was reasonable in length (see Nikita v Nikita 2002 CanLII 46584)
Imputation of Income
Under Clause 19 of the provincial Child Support Guidelines, a court can impute income to a parent when it deems such an imputation as appropriate, thereby using the parent’s imputed income rather than the actual or reported income when determining the amount of child support that will be owed. The principles governing the imputation of income are as follows (see Bekeschus v Doherty, 2011 ONCJ 232 at paras 37 to 40):
- A parent must earn what they are capable of earning ;
- A payor is intentionally under-employed if that parent chooses to earn less than they are capable of earning. That parent is intentionally unemployed when they choose to not work when capable of earning an income;
- A parent cannot pursue an improvident career path at the expense of the child; and
- A parent cannot avoid child support obligations by a self-induced reduction of income.
New Partner
If one of the child’s parents has a new partner, the court will not consider the income of the new partner as disposable to the payor, but will take the new partner’s income into account when calculating “what means are available to the [parent] to pay [their] new family’s operating expenses, thereby freeing monies to assist in paying [their] support obligations”.
Special or Extraordinary Expenses
A court may order additional child support to be paid, on top of any amount ordered pursuant to the guidelines, if there are special or extraordinary expenses. Such expenses are listed in section 7 of the Child Support Guidelines, and may include:
- Post-secondary education;
- Health-care related expenses (such as orthodontics, psychological counselling etc.);
- Additional expenses for extra-curricular activities; or
- Dental or medical insurance premiums attributable to the child.
Retroactive Child Support
It is possible for a Court to order retroactive child support. The Supreme Court of Canada, in D.B.S. v. S.R.G. 2006 SCC 37 has outlined two principles governing retroactive child support:
- Each parent has an obligation to ensure their child receives proper support in a timely manner; and
- Courts must balance the payor’s interest in the certainty of the status quo with the need for fairness and flexibility.
The four factors a Court will consider regarding a claim for retroactive child support are:
- Reason for delay in bringing a claim;
- Conduct of the payor parent;
- Circumstances of the child;
- Hardship that may be caused by a retroactive award.
An award for retroactive child support will, in general, commence on the day of “effective notice”, which is when a payor parent was notified that support should be paid or renegotiated. However, depending upon the conduct of the payor parent, it is possible for a court to order retroactive child support to start on an earlier date than that of effective notice.
The issue of support is complex. If you are considering a separation and want to know more about your potential rights and obligations, contact HGR Graham Partners LLP. Our team of experienced Family Law Lawyers will be happy to set up a consultation.