Child Support and Spousal Support: The Facts

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child supportJust because you decide to end your marriage does not mean that your obligation or your partner’s obligation to your children ceases to exist.

Upon the breakdown of your marriage, there will be a number of issues with which to deal. Among them are the custody arrangements for your children and subsequently what child support, if any, would be warranted.

Child Support

Child support is the right of every child. So regardless of your marital or common law status, child support can be sought. The courts continually demonstrate special care and attention to the best interest of the child and never fault children for the marital status or the choices made by their parents.

Once your children’s primary residency is established, the Child Support Guidelines are used to calculate and determine the monthly child support amounts paid by one parent to the other for the benefit of the children.

The Child Support Guidelines is a table used to help determine the amount of support based on the total income of the parent paying support, as well as the number of children for whom support is to be paid. It’s of value to note that “total income” includes, among other things, stock options, bonuses, overtime, investment income and rental income.

Spousal Support

It makes sense at this juncture, to take a moment and distinguish child support from spousal support.

Unlike spousal support, child support is not tax deductible by the payor and not deemed taxable income by the recipient.

Whereas child support in Ontario is the right of every child, spousal support is premised on the view that a marriage is a financial partnership. When that partnership ends, the person with the greater income may have an obligation to pay the spouse with the lesser income. This can be done either by a lump sum payment or on a periodic basis.

In deciding whether a spouse is entitled to support and for how long that support should be given, the court looks at several factors including:

  • The income of each party
  • The age and health of the parties
  • The standard of living to which the dependent has become accustomed
  • The length of cohabitation
  • How the dependent spouse may have contributed to the others’ career potential

It must be said that where child and spousal support are both being sought, child support takes priority to spousal support. So if there are insufficient funds to pay over and above child support, spousal support will likely be denied or postponed.

A parent can apply for child support at any time after separation, provided that they can demonstrate that the child lives in their care.

Court Ordered Child Support

Most divorcing couple are able to establish on their own a suitable level of child support, with reference to the Child Support Guidelines, paid by one parent to the other. Typically this takes the form of monthly payments. Sometimes however, the courts may need to intervene to resolve the issues for them. To do this, they will generally issue an ‘order’ which will dictate not only the amount that is to be paid, but also how and when the payments will be made.

Should payments not be received, parents have many options available to ensure that child support is paid. The support recipient may seek enforcement through the Family Responsibility Office (FRO), a provincial government agency that enforces and collects child support from the support payor for the benefit of the support recipient. In order for the FRO to enforce payment, the support recipient would be required to file a separation agreement with the courts. In the case of a court order, the order is automatically enforced by the FRO unless both parties agree to withdraw the order.

Because it is an important obligation, the Family Responsibility Office is mandated to take serious action for non-payment of support (both child and spousal). Such actions include: garnishing bank accounts, driver’s license suspension, and even jail time.

Special and Extraordinary Expenses

An additional form of child support is also commonly referred to as section 7 special and extraordinary expenses. These expenses are over and above the table amounts required by the Child Support Guidelines, and are paid by the parents. A few examples of section 7 expenses are: day care costs, tutoring fees, and medical expenses. Typically both parents share these expenses in proportion to their respective incomes.

When it comes to divorce, there are a number of issues to contend with and, sometimes, dispute. Children should never be one of them.

The love and support of both parents is vital for the growth and development of any child. And although divorced parents cannot always be physically present with their kids, ensuring that a financial support system is in place ensures that you are always making a valuable and necessary contribution to their overall well-being.

Image: “Pretty Child In School Uniform Using Calculator” by stockimages courtesy of freedigitalphotos.net.

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About Author

Lisa Gelman is the owner of the family law firm, Gelman & Associates, which has grown to include 8 exceptional lawyers, serving six offices in North York, Downtown Toronto, Mississauga, Scarborough, Aurora and Barrie. Knowing that separation and divorce can be the most stressful experience of anyone’s life, Lisa’s promise to clients has always been to guide them with compassion and understanding, while aggressively protecting their rights. When not practicing law, her son and young twin daughters keep her grounded as they spend time loving, learning and growing together.

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