Child and Spousal Support
What is Custody
(sometimes called parenting)
“Custody” means the care and decision making for the child(ren).
The legal test is: “What is in the best interests of the child?”. The Children’s Law Reform Act sets out what this includes. A major question is “who is the primary care giver?”
Sole custody means that one person is in charge of making the major decisions for the child. (For example which school does he/she attend, in which religion is he/she to be raised, and what medical care does he/she receive?)
Joint custody – means the parents have equal say in those major decisions.
Shared custody means the same as joint custody and the children share the time with each parent on at least a 60/40 basis.
What is Access (or Visitation)?
This is also governed by “the best interests of the child” test.
There are many forms of visitation depending on the availability of the parents.
If both parents work Monday-Friday 9-5, then it is not unusual that the access parent has the child(ren) every other weekend from Friday evening to Sunday evening or Monday morning and one or two evenings or overnights during the week.
If the parents work shifts, the
access can accommodate their particular schedules.
If necessary, the access can be supervised at an access centre or by a third party, either on a short of long term basis.
The particular access may depend on the age of the children and the distance between the parents’ homes.
The primary focus of the court is the rights of the child, as
distinguished from the rights of the parents.
The parent with whom the child lives is entitled to receive child support from the other parent, on behalf of the child. In Ontario, the amount paid by the non-custodial parent is governed by the Child Support Guidelines (They are called “guidelines” but they
The amount paid depends only on two factors:
- the gross annual income (as listed on line 150 of his/her last income tax return) of the non-custodial parent and;
- the number of children he/she has with the other parent.
The CSG tables can be found at http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp
For example, a non-custodial parent, earning $50K/yr will pay a monthly amount of $461.00 for one child, $755.00 for two children and $977.00 for three children. If the non-custodial parent is self-employed, the court may disallow business deductions taken even if these are allowed by Canada Revenue Agency.
If the amount on the ITR is different than the actual current income (for example because the payor is now receiving E.I.), the court may choose to use his current income to establish the amount payable.
The court may also make adjustments to the income amount if the income tax return included pay for bonuses and/or overtime that is no longer received. The Guideline amount includes expenses for food, shelter and clothing.
In addition, to the amount, the payor may be required to pay the children’s “extra expenses”.
Section 7 of the Guidelines sets out which items may be “extras”. They include childcare, healthcare and post secondary expenses They also include “extraordinary expenses for extracurricular activities”, such as sports, arts or other programs. These expenses are to be shared proportionate to income.
For example, if the paying parent earns $40K/yr and the other parent earns $20K/yr, then the payor must pay $40 divided by ($40 + $20) or two thirds of the expenses after deduction for tax benefits to the recipient and reimbursement, if any, by third parties, such as an employee’s health plan.
How is Spousal Support determined?
Unlike the child support scheme, there are no legally binding guidelines for spousal support. Assuming an entitlement exists to spousal support, the amount and duration can be determined by reference to similar cases and/or reference to the Spousal Support Advisory Guidelines (SSAGs).
The SSAGs are not law, however Ontario Courts do refer to them as an aid. The Court of Appeal said that if “a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result”.
The SSAGs are not set out in tables; although they can be determined by specialized software that takes into account, (among the factors), the length of the marriage, the custody situation, the age of the parents and the amount of child support paid.