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May

26

Child Support – Need an Ontario Lawyer?

Child Support: looking for answers? Need a child support lawyer?

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to child support or determining child support payments, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have family law lawyers registered on Dynamic Legal Forms who can offer information, advice, and assistance with respect to your child support matters.

How much?
Often people don’t know how their child support obligations are determined. Fortunately, if the Federal Child Support Guidelines apply to the particular situation, then you can go to this Department of Justice Canada website and plug in your income into a free child support calculator for it to spit out what your monthly obligations would be. The key thing to keep in mind is trying to figure out what your income would be for the purposes of determining child support. It’s not as easy or straightforward as one might think. There are a number of steps that begin with looking at your last income tax return and making adjustments according to the Federal Child Support Guidelines.

The Federal Child Support Guidelines are regulations made under the Canada Divorce Act. The latter applies when parents are married and are now divorcing or formerly married and making a claim for child support. If the parents are not divorcing or were not married at all, then child support would have to be calculated by the provincial jurisdiction’s relevant family law legislation. In Ontario, for example, child suppport is determined according to the Family Law Act and the Ontario Child Support Guidelines. The latter also has a table (as does the Federal Child Support Guidelines) that allows users to pinpoint what their child support obligations would be based on their income.

Again, it is encouraged to consult with a family law lawyer (e.g. by making a post on Dynamic Legal Forms) before simply assuming that you know what your income would be under the applicable child support guidelines (and possibly relying on a free child support calculator to your detriment).

Who is a Parent?
So who is a “parent” for the purposes of paying child support in Ontario under the Family Law Act? Does it only mean the biological parent? How about a parent who formally adopts a child? What about the boyfriend/girlfriend of a child’s biological or adoptive parent?…

Essentially, in Ontario, a “parent” for the purposes of child support obligations under the Family Law Act includes a child’s biological father or mother and any other person “who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody”. Lets take a look at a number of previous Ontario court cases that dealt with this latter issue, shall we? Remember: the Ontario Family Law Act applies in cases where the parents are not or were not married; if they are or were married, then the Federal Divorce Act would apply, not the Ontario Family Law Act. So please keep that in mind as you read on!

In Baldwin v. Timmermans, (sub nom. C.M.B.B. v. T.J.T.), 18 O.T.C. 174, the Ontario Court of Justice – General Division was faced with an interim child support request (the fact that it was an interim matter means that child support was being asked to be provided prior to the actual trial). The facts are fairly straightforward. A man was asked by a woman to provide support to her child. The man and the child’s mother never married but had lived together. The man argued that he was not responsible for supporting the child, saying that he never acted as a parent and that he actually had a rough relationship with the child. The Court disagreed and ordered the man to pay child support on an interim basis. Perkins J. reasoned that the child’s mother had pointed to “objective evidence establishing that a subjective intention existed” on the part of the man to treat her child as a child of his family. The mother had pointed, through her affidavits, to objective evidence of direct financial support to or for the benefit of her child as well as to the mother for the benefit of the family unit generally. In addition, the man had signed a written document called “My Personal Commitments” which committed the man to (among other things) love and support the child. Perkins J. held that the mother had made out a prima facie (on its face) case for child support by pointing to credible evidence which would entitle her to succeed at trial.

In Lebeck v. Laurin, [2005] W.D.F.L. 680, the Ontario Superior Court of Justice commented that various factors set out in Chartier v. Chartier (1999) 43 R.F.L (4th) 1 (S.C.C.) were useful, though not determinative, in deciding whether a person had a settled intention to treat a child as a child of his or her family. Those factors include, but are not limited to:

  • whether the child participates in the extended family in the same way as would a biological child;
  • whether the person provides financially for the child (depending upon ability to pay);
  • whether the person disciplines the child as a parent;
  • whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as apparent to the child; and
  • the nature or existence of the child’s relationship with the absent biological parent.

In that case, Wood J. found that a man was liable to child support to the children of his wife and another man on the basis that (among other things): he paid for many of the children’s expenses, transported them to games and activities, was an assistant coach of teams upon which the children played, and wrote letters indicating that he was interested in the children’s welfare. It was interesting to note that, although there was evidence that man was scrupulous in protecting the role the children’s biological father played, the man had still exhibited a settled intention to treat the children as children of his family within the meaning of the Act.

Finally, in Land v. Aitchison, 2005 CarswellOnt 372, the Ontario Superior Court of Justice found that a man was liable to pay interim child support to children who were born out of a previous marriage from a woman with whom the man had cohabited. Pedlar J. pointed to “independent evidence” that demonstrated a prima facie case on the issue of child support such as:

  • The man referred to the girls as “my daughters” or “my girls”;
  • The man participated in the girls’ extra curricular activities, including coaching a baseball team;
  • The man took the girls to their medical and dental appointments as well as school trips, etc.;
  • The man paid for expenses, attended a graduation and provided a ring;
  • Report cards showed that the man had completed and signed the “parent and guardian” section.
  • The children referred to the man as “dad” in pictures in their journals and school drawings;
  • The children referred to the man’s sister, brother-in-law, and mother as aunt, uncle, and “Nan”.
  • The man attended the interviews at the school with the children;
  • The man attended family gatherings regularly with the children and their mother and appeared to be playing a parental role;
  • The man often took the initiative in disciplining the children.

On the basis of that evidence, the court rules that the children’s mother had established a prima facie case for interim child support.

For more information about whether a person could be the father of a child under the Family Law Act or the Divorce Act, be sure to consult with a lawyer (by making a post on Dynamic Legal Forms).

Determining Income
So what is the relevant time period for determining a parent’s ” income” for the purpose of paying child support (note: this blog won’t deal with the timeline for determining income in respect of retroactive payments).

Remember: a parent’s child support obligations depends on whether they meet certain legal tests. If they are obliged under law to pay, the next question becomes: how much do they need to pay? Well, that depends on their income. But it’s not just any “income” (e.g. income for tax purposes, etc.). It’s actually a complicated legal analysis of what constitutes their income. I’ll try to shed some light in the next few posts about relevant issues when trying to determine a payor’s income.

One such issue that comes to mind is: what is the relevant time period for determining a parent’s “income” for child support purposes?

In a nutshell, the most current information must be used.

The Child Support Guidelines prescribe a method to determine child support. The starting point is the parent’s total income, as shown on his or her income tax return (latest T1 General form issued by the Canada Revenue Agency), and as adjusted in accordance with Schedule III of the Guidelines [s. 16]. The definitions section of the Guidelines provides that, where any amount is to be determined on the basis of specific information, the most current information must be used [s. 2(3)].

In Ward v. Ward, 44 R.F.L. (4th) 340, the Ontario Divisional Court stated the following with respect to the Federal Child Support Guidelines (which mirror the Ontario Child Support Guidelines):

23 In order to identify the table amount of child support the income of the petitioner must be ascertained. In the usual case the income of the payor-parent is identified by using the most current information available (pursuant to s. 2(3) of the Guidelines) and by referring to the “Total income” found in his or her T1 General form issued by Revenue Canada (pursuant to s. 16 of the Guidelines).

This view was reiterated in Muir v. Muir, 44 R.F.L. (4th) 340, where the Ontario Court of Justice observed:

23 I also note subsection 2(3) of the Guidelines which reads as follows:

Most current information – Where for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.

Worth mentioning, however, is that courts have recognized that the amount of income disclosed on the tax return need not necessarily be used: prior to the end of a taxation year and in certain circumstances, a parent can apply to vary child support based on an anticipated reduction in income.

Finally, the court may consider the parent’s last 3 years of income and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years [s. 17(1)]. The objective is to determine the fairest indicator of the individual’s income. Once the parent’s annual income is ascertained, the Ontario Child Support Tables set out the amount of monthly child support payable. For more on using the tables or a child support calculator to determine child support obligations, please refer to my other blogs.

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