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Child Support

Financial Disclosure

Section 21 of the Guidelines specifies the documentation that has to be provided by the payor (or the recipient in certain cases). The documents include the past three years income tax returns plus supporting documentation plus the notices of assessment.

If the party is an employee a recent pay statement or a letter from the employer with year-to-date earnings information has to be supplied.

If the party is a shareholder or owns his or her own business, then additional material will be required, including corporate tax returns, year-end financial statements and a break-down of wages and salaries. Any failure to provide this information can result in a number of penalties, including costs orders against the delinquent party, an order that the delinquent party’s pleadings are dismissed and/or the court may "impute" income, meaning that the court will impose its own view on what the support payor’s income is.

Also, the payor has an obligation to provide this information to the recipient every year if the recipient requests it in writing.


Step Children or Natural Children

A "child" is not only a natural child of the parties, but may also be a step child if the payor can be said to have treated that child as his or her own.

The court examines a number of factors, including but not limited to the following:

1. How old was the child when the payor and recipient began cohabiting?
2. Does the child have any contact with his or her other natural parent and is that parent paying support?
3. How many years have the payor and recipient been living together?
4. Did the payor discipline the child?
5. Did the child refer to the payor as a parent?
6. Did the payor claim the child as dependent for income tax purposes?

Generally speaking, tax returns, Father’s Day or Mother’s Day cards, birthday cards from the payor to a "son" or "daughter" and beginning a lengthy cohabitation when the child is under three-years of age can all be determinative evidence of a "settled intention" to treat a step-child as their child.


Extraordinary Expenses

The most common adjustment to the table amount of child support is based on a child’s special or extraordinary expenses, often called Section 7 expenses or "add-ons." Those expenses include childcare expenses, educational, medical expenses, extra-curricular expenses and other extraordinary expenses. Those costs are to be divided between the parents in proportion to their incomes and added on to the table amount of support paid by the payor. The amount of the expense is adjusted to reflect any tax savings realized by the parent paying the expense

The difficulty is in determining what an extraordinary or special expense is. There is usually no dispute over medical costs and not usually much of a dispute over educational costs. Most disputes arise over the extra-curricular activities and child care expenses.

Should a payor contribute to every activity a child is engaged in or just those activities that the child was involved in before the parties separated? What if the activity occurs during the payor’s access time? Should the payor have to pay for the privilege of having his or her time with the child cut back? If the custodial parent hires a nanny to look after the children, but the nanny also does general housecleaning, should the payor have to share the entire expense of the nanny or only a portion of that cost and what portion should that be? Questions such as these have been the subject of much litigation and some uncertainty.

Custodial parents must not assume that they can enroll the child in an endless number of activities and expect the non-custodial parent to contribute to the cost. The custodial parent should be prepared to show that the activity is reasonable given the economic circumstances of the family unit and that it will be beneficial to the child.

A rule of thumb seems to be that the courts consider two or three ongoing activities a reasonable number for most children. From the payor’s perspective, therefore, there is not much point objecting to contributing to the cost of one or two activities

 

Reduction in Child Support

"Shared Custody" describes the situation where the child spends roughly equal time with each parent. In order for a shared custody situation to exist, the Guidelines require that the child be with each parent at least forty percent of the time. A number of rather complicated options then exist in terms of how to determine how much child support gets paid.

For example, the simplest way is to determine the guideline amount for each parent and subtract the lower amount from the higher amount. This is called the "Set-Off Method." Or a court may make this calculation, but then multiply it by a number equal to the percentage of time the child actually spends with a particular parent and set off that amount. This is called the "Revised Set Off."

"Split Custody" exists where there is more than one child and one or more of the children reside with one parent and one or more of the other children reside with the other parent. Again, there are different methods available to determine the adjustment that might be made to child support.

For more information on child support visithttp://www.attorneygeneral.jus.gov.on.ca/english/family/divorce/support/

Contact us for more information or if you wish to obtain child support advice in your family law matter.

Call us today at 416.484.8200 or email eveschwarz@bellnet.ca

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