Child support is rife with myths, misinformation and misunderstandings about the law, which can create expectations for parents as to what they could owe or receive in child support.
In this post, I will explain some of the more common myths about child support, and set the record straight about the Child Support Guidelines.
Myth #1: The amount of child support is based on how much money is required to care for my specific child.
Fact: Prior to 1997, parents would propose budgets to support what they felt were a reasonable amount of child support, and the court would make a ruling. Unsurprisingly, this led to wide variation and encouraged litigation between payors and recipients.
Currently, the amount of child support to be paid is based on the tables in the Child Support Guidelines. The amount payable will depend on the number of children, the time each child spends with either parent, and the payor parent’s income. The Guidelines also enumerate other expenses, called special and extraordinary expenses, that are payable in addition to the table amount of support.
Myth #2: If two spouses separate and neither needs any financial support from the other, they can agree that no child support will be owed to the other.
Fact: The law in Ontario considers that child support is the right of the child, and not the right of the parents. Therefore, parents do not have the legal ability to waive or bargain away that right. Child support truly belongs to the child and, like with most rights belonging to children, courts are protective of it.
However, the law does allow parents to make arrangements regarding child support, so long as those arrangements benefit the children as much or more than would the payment of child support pursuant to the Child Support Guidelines.
Even if parents come to an agreement about child support, the court always retains the power to disregard that agreement and order support, even retroactively. Anyone thinking of trying to craft an arrangement such as this should speak to experienced family lawyer before proceeding.
Myth #3: When the income of a recipient parent increases (or decreases), child support needs to change.
Fact: As outlined in the Child Support Guidelines, the amount of support is based on the income of the payor parent. In cases of shared custody (discussed below), both parents are considered payors. In those situations, a change in either party’s income can necessitate a change in support.
Where parents are not in a shared custodial arrangement, a change in the recipient’s income will not affect a payor’s support obligation. Parents should keep in mind that child support is not meant to equalize parents’ income. If a recipient’s income changes, this will not trigger a change in support. However, if a payor’s income changes, this can trigger a change in support.
Myth #4: Once a child is over 18, they are no longer entitled to child support.
Fact: Child support in Ontario does not automatically terminate once a child reaches the age of 18. In Ontario, child support can continue past the age of 18 in limited circumstances: where the child is enrolled in a full-time, career-oriented course of education or, where by reason of illness, disability or other cause, the child is not able to withdraw from their parental care and become self-supporting.
Myth #5: When a child splits their time equally between their parents’ houses, there is no child support payable.
Fact: When parents share time with their child equally, this is referred to as a “shared custodial” arrangement.
The amount of support payable in a shared custody arrangement takes into account:
- The amount set out in the Child Support Guidelines tables for each parent, based on their income;
- The increased costs that are inherent in shared custody situations, and;
- The condition, needs, means and other circumstances of the parents and the child.
In many cases, courts find that the fairest way to determine support in these situations is a “set-off”. In these cases, the court will calculate support based on the parents’ income, and set them off. That is, the parent who has a higher income will end up paying the difference between the two amounts. If the two incomes ever diverged or circumstances change, the arrangement may have to be revisited.
If you have questions about child support or are involved in a family law dispute, please contact our experienced Family Law Group.
