The obligation to pay support
Ontario law mandates the governing principle that all children have a right to receive financial support from their parents, regardless of whether the parties were married or whether the pregnancy was planned.
This arises from two pieces of legislation that address the topic of child support:
- the Ontario Family Law Act, and
- the federal Divorce Act (in situations where the parents are married).
The obligation exists regardless of the state of the relationship between the parents. When the parents are living together, the expenses relating to child care and upbringing are normally shared either formally or informally, within the family unit. But even if the parents decide to separate, the obligation to pay child support continues and the precise allocation as between the two parents must be conclusively determined by agreement of the parents, or else by court order.
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The child support obligation is generally dictated by the child’s living arrangements. For example, one common option is for the child to live for equal periods of time with each parent; in such cases, the costs related to raising the child may be borne more-or-less equally by each of them, although there will be adjustments to the amount in accordance with the respective income of the parents and other factors. Also, courts will typically allow for a “set-off”, which involves each parent’s calculated child support obligations being set off against the other’s, so that the parent with the greater child support obligation will merely pay the other parent the difference.
Alternatively, it may be in the child’s best interests to live with one of the parents most of the time, in which case that parent will have the primary care of the child and will incur the majority share of expenses related to the child’s day-to-day care and upbringing. In these situations, the other parent is obliged at law to pay child support in order to assist with those child-rearing expenses.
Duration of the obligation
In Ontario, the obligation to pay child support exists as long as the child is dependent, which normally means up to the age of 18 years. However, the obligation can end before that if the child has married, or if he or she is 16 years of age or older and has voluntarily withdrawn from parental control.
Conversely, the obligation may extend beyond the age of 18 in the right circumstances. Generally, this occurs where the child is unable to be self-supporting due to a disability or illness, or because he or she is still attending school full-time. (Incidentally, even if the child is living out of the family home while attending school, the parents will have child support obligations provided the child still has a “primary residence” with one or both of them.)
This extended child support obligation usually lasts until the child obtains his or her first post-secondary degree, though in some cases a court may order the support obligation to continue even beyond that point. In all cases where support obligations are contemplated for a child over age 18, the court will consider any income that the child may earn (for example from a part-time job).
Amount of support
The specific dollar-value amount of support to be paid will be determined according to the Federal Child Support Guidelines (the “Guidelines”), which uses various formulas that incorporate various factors such as the income of each of the parents and whether the child lives primarily with one of them.
In a nutshell, the Guidelines provide that the amount of child support payable is:
- the amount set out in the applicable Guidelines table, having regard to the number of children the parents have, and having regard to the income of any parent who is obliged to pay support, and
- the amount, if any, determined to be a special or extraordinary expenses.
For these purposes, “special or extraordinary expenses” encompass those costs that are over and above the normal ones that usually accompany the raising of a child, i.e. post-secondary education, recreational sports equipment, the cost of various lessons (such as skiing, gymnastics or dance), tutors, piano lessons, etc.
The obligation to pay child support arises through a complicated interplay between the legislation, the Guidelines, and the specific facts. Contact our Firm for specific advice that pertains to your unique situation.