In Canadian law both parents must contribute to the support of their children. The Federal Government has introduced National Child Support Guidelines which have largely standardized child support levels for proceedings under the Divorce Act. These Guidelines came into effect on May 1, 1997, and since that time, the Nova Scotia government has adopted essentially the same guidelines for proceedings under the Custody and Maintenance Act.
The amounts of support under these Guidelines are determined by the use of tables which vary by province and depend on the paying parent’s gross income and the number of children. Child support under the Guidelines is normally referred to as the “table” amount. The law views child support as the right of the child and it therefore cannot be bargained away or traded for something else by the parents. In most separations the parent who does not have primary care of the children will be expected to pay the “table” amount of support for their children to the primary care parent.
There are a variety of situations where these “table” amounts can be varied. There are different child support rules for certain parenting arrangements, for parenting situations involving children over the age of majority, as well as in situations where the paying parent has an annual income in excess of $150,000.00. There is also a possibility of having the “table” amount varied in situations of “undue hardship”. Undue hardship is difficult burden to meet and involves a detailed analysis of both parent’s household standard of living. An experienced family law lawyer can help you analyze your particular parenting situation and determine which child support rules apply to you and your family.
The “table” amounts prescribed by the Guidelines are for the most part determined entirely on the income of the paying parent. Income determination is therefore a central issue in determining the amount of child support payable. In some circumstances, income determination is as straight forward as reviewing paystubs and income tax returns. However in cases where a paying parent is self-employed, that parent’s income tax return may not sufficiently disclose their “income” for the purpose of fixing a child support order.
The Guidelines expand the disclosure required of self-employed people to include items such as wages paid to a “non-arm’s length person” and certain “perks” available through the business. For example, in Ghosn. v. Ghosn, a decision of our Supreme Court (Family Division) argued by lawyers at our firm, the husband claimed that his income for support purposes was $60,704.00. At the conclusion of the trial the justice had determined that his true income for support purposes was an amount of $294,000. Since the court’s finding the correct level of income is crucial for the determination of child support, the impact on the support payments ordered can be dramatic.
At Singleton Family Law, our lawyers will work with you to determine what financial disclosure is required in your situation and assist in ensuring that all disclosure requirements are met.
In addition to the child support amounts which are set out in the Guidelines, a parent may be required to pay additional amounts for their children’s childcare expenses, health, dental, educational, or extracurricular expenses. In most cases the amount of additional support that will be required is divided proportionately between the parties depending on their incomes. For example, if one parent has an income of $75,000.00 and the other parent has an income of $25,000.00, then the expenses are divided between the parties 75%/25%.
This being said, the requirement to pay for these expenses is not automatic and requires a detailed look at the family’s financial situation, both currently, as well as when they were living as a family unit. For instance, if extremely expensive extracurricular activities like horseback riding or hockey are not expenses that the family could have afforded or would have incurred while the family was together; there is an argument that they are not expenses the family can afford now. A court may also determine that once amounts that are already being paid for child support and spousal support are taken into consideration there is simply not enough money left over to order that these expenses be shared as well.
An experienced family law lawyer can help you work through these expenses and evaluate your particular situation to determine if you are obligated to pay or entitled to receive support for these expenses.
Parents are often shocked to hear that they can be obligated to pay for their children’s university expenses. Like other special expenses, university expenses are usually shared between the parents proportionately based on their incomes. Also, there is no automatic obligation to pay these expenses. An order for these expenses would involve an analysis of the family’s financial situation, both currently and while they were together. This will always be a case by case exercise and it is often difficult to assess whether a Court will order that these expenses be paid.
Child support under the Divorce Act is generally payable as long as the child remains a “child of the marriage” which generally means until that child reaches the age of majority. However, if a child continues with their education beyond secondary school, or otherwise remains dependent due to illness or disability, the court has the ability to order that child support continue.
Generally the support obligation will be extended until the child completes a first post-secondary degree or diploma. Sometimes this analysis is not straight forward, for example in circumstances where the child takes time off to work or to travel etc. In these situations, it is less likely that the court would be prepared to order that child support continue, however, they may still be ordered if the child has plans to continue their education at a later date.