Child support is the right of the child. Child support is the legal responsibility of parents or guardians to provide financial support. Consequently, this is to the extent that the parent is capable of doing so for his or her unmarried child. The child must be:
- A minor;
- Enrolled in a full-time program of education; or
- Unable by reason of illness, disability or other cause to withdraw from the care of his or her parents.
The Federal Child Support Guidelines (“Guidelines”)presumes an ability to pay on behalf of the payor in accordance with his or her income; pursuant to section 16 of the Guidelines. Under the Guidelines, child support is determined by:
- The number of children
- The province where the paying parent lives
- The before tax annual income of the paying parent
Child support recipients do not include the child support as taxable income on a tax return and child support payments are not deductible for the paying parent. Individuals often believe that if they do not see or care for their children, that they are not responsible for paying child support. This is incorrect.
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Special and Extraordinary Expenses
Section 7 of the Guidelines provides that Guideline amounts may not be sufficient to cover the cost of special or extraordinary expenses.
The term “extraordinary expenses” is defined in subsection 7(1.1) of the Guidelines as follows:
- (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
- (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
- (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
- (ii) the nature and number of the educational programs and extracurricular activities,
- (iii) any special needs and talents of the child or children,
- (iv) the overall cost of the programs and activities, and
- (v) any other similar factor that the court considers relevant.
Section 9 of the Guidelines
According to Section 9 of the Guidelines support may vary according to custody . If a spouse exercises a right of access to, or has physical custody of, a child for not less than 40% of the time over the course of a year. In this situation, the amount of a child support order must be determined by taking into account:
- The amounts set out in the applicable tables for each of the spouses;
- The increased costs of shared custody arrangements; and
- The conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
In Contino v Leonelli-Contino, the Supreme Court of Canadaexplained that the determination of an equitable division of the costs of support for children in shared custody situations is a difficult matter and is not amenable to simple solutions. Any attempt to apply strict formulae will fail to recognize the reality of various families. The weight of each factor under section 9 will vary according to the particular facts of each case.
Family Responsibility Office
The Family Responsibility Office (“FRO”) collects, distributes and enforces child and spousal support payments. All child support orders made in Ontario are automatically registered with the FRO for enforcement. The duty of FRO is to enforce the orders and pay the amounts collected to the individuals to whom they are owed.
Child Support and Covid-19
Regarding the COVID-19 pandemic, the FRO said that support payors are expected to continue to make payments pursuant to court orders. However, payors should inform the FRO as soon as possible if circumstances change due to the pandemic and FRO will attempt to work with them. There are several other modifications regarding the enforcement of orders and garnishing wages. These can be found on the FRO’s website: https://www.mcss.gov.on.ca/en/MCSS/programs/familyResponsibility/fro-covid.aspx.
In Browning v Browning the Honourable Justice Tobin explained that while the COVID-19 pandemic remains ongoing, it was not appropriate to use the father’s 2018 or 2019 income as the basis for his ongoing child support obligation. Justice Tobin said that the evidence was clear. The father was not earning the same amount of money and had not caused his income to be reduced. Rather, it was the extenuating circumstances of the pandemic.
The COVID-19 pandemic has been the cause for many individuals involuntarily losing their employment. In Norris v Morocco, the Honourable Justice Gregson explained that the father should be entitled to a grace period. It relates to his child support payments and a reasonable imputation of income, considering the fact that the father involuntarily lost his employment.