For those who either pay or receive child support, you may not know that you probably have a right (if you are the recipient) and an obligation (if you are a payor) to obtain or provide sufficient evidence of your income for the purposes of determining and adjusting child support on an annual basis.
For many separated couples with children, the process of obtaining child support from the other party can be trying enough. Some payors initially attempt to mask their true incomes in an effort to pay less child support. Often, child support recipients have to spend time and money on a lawyer in order to determine what the payor's actual income is, or commence a court application in order to have income imputed to the payor. Once this lengthy – and often costly – process is over, the last thing a child support recipient wants to do is repeat the process of requesting disclosure all over again.
However, because child support is the right of the child and not the recipient, both the Federal and Ontario Child Support Guidelines provide that any Order for child support must include an Order for the annual disclosure of income, and an adjustment of the amount of child support payable. If your child support arrangements are set out in a court Order, annual income disclosure requirements will apply to your situation automatically.
If you have a separation agreement, rather than a court Order, your agreement may incorporate the annual disclosure process. Unlike spousal support, a contract between parties not to vary, increase (or decrease) child support is not enforceable in a Canadian court of law. You should check your separation agreement to see whether you should request income disclosure, or if you are obligated to provide it. Your agreement may require you to provide income information annually, or your agreement may provide that income disclosure take place only upon one party's request.
The kind of disclosure required varies depending on the employment circumstances of the payor. The basic starting point is the payor's last tax return and notice of assessment from Revenue Canada. For more detailed information on the type of disclosure required by law, see section 21 of the Federal Child Support Guidelines. How income is ultimately determined if the parties cannot agree can be found in sections 15 to 20 of the Guidelines.
It should be noted that it is not only recipients who have an interest in receiving adequate, annual income disclosure. If a payor's income has decreased since the last adjustment, child support should accordingly be decreased and adjusted accordingly. Therefore, it remains in everyone's best interest to cooperate with this process.
This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2020 Nelligan O’Brien Payne LLP.