Spousal Support

Both parents have a responsibility to support their child or children. If you are divorcing and the child’s primary residence is not with you, you must pay a set amount outlined in Child Support Guidelines. There are two Guidelines, the federal and provincial Guidelines. The federal guidelines are used in conjunction with the Divorce Act when the parties are married or divorcing. The provincial guidelines are used in conjunction with the Family Law Act if parents are not divorcing or were not previously married. The two guidelines are the same, and the only difference between them is your marital status and the statute used to bring an application.

The Guidelines list a prescribed quantum for child support calculated based on the number of children and the payor’s income. The payor is the parent that will be paying child support.

The primary residence of the child or children is the determining factor on who will be paying child support to whom. The general rule is if the child spends at least 60% of their time with one parent, the other parent must pay Guideline support. However, there are instances where parents have a shared custody arrangement that gives the court the discretion to depart from the Guideline support. As mentioned in Child Custody and Access, joint custody can take many forms, such as shared custody or split custody. In those circumstances, it is helpful to talk to a lawyer because it can affect the amount of support you are required to pay.

Although the Guidelines set out a set quantum of support, the court is given the discretion to depart from those amounts depending on the circumstances of each case. Therefore, in addition to the aforementioned factors, here are some additional considerations the court will look at when asked to depart of the states support amounts:

  • The payer’s income – if the payer’s income is over $150,000 per year, the court will have the discretion to depart from the Guideline table amount;
  • The age of the child – a typical example of this is where the child is a full-time student at a post-secondary institution
  • Special or extraordinary expenses – these are expenses that exceed the amount the supporting parent is required to pay, sometimes that parent, depending on the circumstances, will be ordered to pay for the extraordinary expense in full or it will be divided between the two parents (discussed more below);
  • Undue hardship on the parent or child – this is most commonly seen where the access (parenting-time) parent has to travel an extensive amount to spend time with the child;
  • Past orders – the court will consider any past order and prescribe support accordingly;

Special or extraordinary expenses are defined in s. 7(1.1) of the Guidelines, and as previously mentioned, are an additional cost on top of the required table amount set out in the Guidelines. The court can order all or a portion of extraordinary expenses, including daycare expenses, extracurricular expenses, or primary/secondary education costs.

The courts will consider what the spouse can reasonably cover and consider similar factors as those listed. Some of the factors that the court will take account of are: the spouse’s income, monthly support payments, the number of the educational or extracurricular programs, or the unique needs of the child etc. Many of these extraordinary expenses are lists under the table amount for children’s expenses. 

Retroactivity of support orders can be ordered by the court preceding the commencement of the application. It is the children’s right, separate from that listed in statute or order, that the payor parent pays support. In deciding when retroactive support should be awarded, the courts will consider:

  • The reason for the delay in making the application;
  • The conduct of the payor;
  • A child’s present and past circumstances, including the need at the time that the change occurred; and
  • Whether the retroactive award will cause hardship.

If awarded, the general rule is that a new order is issued, with the retroactive date specified (the date on which the requesting spouse gave notice to the payor spouse of the issue). The limit on retroactive awards is three years past – unless the courts find blameworthy conduct on that of the payor spouse.

Why Choose Us?

At Bickhram Litigation, we understand that Child Support proceedings are challenging and emotionally draining. Our lawyers have a great deal of experience helping clients bring support applications and proceedings. We provide sound legal advice and the support you need to make this challenging time a little less strenuous for you and your family. For more information on Child Support proceedings and litigation, please get in touch with us for a complimentary consultation.

 

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