Whitby Child Support Lawyers

Where there are children of the marriage or relationship, there is a legal requirement for both parents to share the obligation of meeting the children’s financial needs. That does not change on separation or relationship breakdown. At M. G. Michaels & Associates, Whitby child support lawyers, our experience will guide you through your specific child support issues.

Child support is frequently paid by the parent with whom the children do not have their primary residence, or the higher income-earner if they have equal parenting-time, in a fixed monthly amount. Child support is the right of a child and Courts do not condone the waiving of support by one of the parents.

It is important to understand that although there are official Child Support Guidelines for Ontario, depending on your income, and how many children are involved, among other circumstances, determining child support is often a great deal more complicated than simply finding a number from within the Guidelines.

Whitby Child Support Lawyers Answer Your 4 Urgent Questions

Generally, child support ends when a child turns 18 years of age and finishes High School, unless there is some reason they cannot become self-supporting at that time, such as pursuing a post-secondary education, illness or disability. Once a child obtains one (and sometimes two) degrees or diplomas, child support should end. Sometimes such a child is given six months to find work before support ends, sometimes not.

On the other end of the spectrum, child support can continue indefinitely if the child suffers from a disability which would prevent them from ever becoming independent, but the child should apply for government benefits to help with their own support.

It is important to note that if a child is over 18, is not in school full-time, is not suffering illness or disability, and continues to live at home, child support terminates.

It is up to each individual parent whether or not they wish to continue supporting their adult children if there is no physical impediment to that child pursuing independence.

Child support cannot be unilaterally stopped or the amount changed. The Court must make a new Order or the parents must reach a mutual agreement about child support ending. If the payor suddenly stops paying, and you have either a signed Separation Agreement or a Court Order detailing what support should be paid, you can contact the Family Responsibility Office (“FRO”) for assistance by having them collect the support for you.

The staff at FRO will be able to start the process required to garnish the payor’s wages, or other assets and income. This can take some time, however they will also garnish back support or arrears for all of the payments that have been missed.

Ongoing support and back support or arrears garnished may not exceed 50% of the payor’s net pay, which could take a long time so if the payor is in arrears, do not wait long to enforce with FRO.

The simplest way to amend [change] your child support payments is to seek the written consent of the recipient parent to do so.

Each year, both parents should exchange their tax returns to determine whether the current amount of child support continues to be correct based on the previous year’s income. If there has been a significant change in income, or the living arrangements for the child have changed, the amount of child support should be amended accordingly.

If one of the parents will not consent to such a change because they do not want to pay higher (or receive lower) support, then your next step would be to bring an Application or a Motion to Change to change child support to reflect the payor’s true income.

Some other options for resolution may include collaborative family law, mediation, or arbitration, depending on the recipient’s position. The lawyers at M.G. Michaels & Associates can help with any of those options as well as Court. Call 905-426-1476 or email us now.

If the child support payor refuses to disclose their income, it does not mean that they will not have to pay child support. A Whitby family law lawyer can assist you in getting a Court Order to get the payor’s tax returns or other documents to find out what their income is.

If the payor still refuses to disclose their true income, a family law lawyer should ask, and a judge has the power to order, an imputation of income to the payor based on what the lawyer introduces in arguments, and the judge believes the payor should be reasonably earning. The payor will then have to pay support on that imputed income, which could be significantly higher than their true income.

Often though, before seeking assistance from the Court, a letter from a lawyer asking for specific disclosure and explaining the law to the payor is sufficient to make them realize that disclosing their income is mandatory under the Child Support Guidelines legislation and that the Court will not tolerate those who try to hide their income to avoid paying child support.

How Much Child Support or Section 7 Expenses You’ll Pay or Receive

At M. G. Michaels & Associates, Whitby child support lawyers, we can help you make sense of the complicating factors that people often encounter when trying to calculate child support, such as:

  • Determining what is, or is not, a Section 7 (special or extraordinary) expense, as well as whether an extracurricular activity expense is to be shared by the parents.
  • Determining whether or not an Order for child support should start from the date of the claim, the date of the Order, or retroactive to the date of separation.
  • Determining how child support would be impacted by changes to a payor’s income, due to wage increase/decrease, termination of employment or retirement
  • The review of whether the 40% shared child support rule applies, or what happens when parents have a split or shared parenting time situation, and whether it would impact child support.
  • The child turns 18, but does a gap year, or enrolls in post-secondary school but is not approve for their chosen program, or if the child cannot become independent because he or she has an impairment or disability which impacts their ability to obtain gainful employment.
  • Determining the true income of a payor who is self-employed, has a business, corporation or family trust, or is simply refusing to disclose their income.
  • Investigating and determining if the payor of child support is intentionally unemployed or under-employed, and whether or not it is appropriate to ask for a higher income to be imputed to them for child support purposes.
  • Communicating with the Family Responsibility Office (FRO) and Ontario Works (Social Services) around the enforcement of child support, garnishment of a payor’s wages, suspension of a non-payor’s driver’s license and passport, and refraining orders around unfair enforcement.

Unpaid Child Support can be made Retroactive, says Supreme Court of Canada

It used to be that if a support recipient took the payor to Court about child support after a child was no longer eligible for support, the Court would essentially dismiss the case. But, Canada’s Supreme Court unanimously ruled on September 18, 2020 that even if the child in question is over the age of majority when you start your Court case, an award for retroactive child support can be made. CBC published an article on Michel v. Graydon, or read the whole case at Michel v. Graydon, 2020 SCC 24.. 

This is a new interpretation of the law from the previous leading decision by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37 (“D.B.S.”) where the Court ruled that child support could not be awarded retroactively under section 15 of the Divorce Act, after the subject child was no longer considered a “child of the marriage”.

The law defines a child as no longer a “child of the marriage” when they are over the age of majority (in Ontario, that is 18 years of age) and are able to withdraw from parental care and control. An adult child will still be considered a child of the marriage if they are in full-time education or are unable to withdraw due to disability or illness. Under D.B.S. the Court stated that retroactive child support Orders could only be made while the child was still considered a child of the marriage, but once they became adults and independent, it was too late to make such a claim.

What the 2020 Supreme Court Ruling on Retroactive Child Support Means for Ontarians 

The Ontario Family Law Act has almost identical language to British Colombia’s section 153, on which the Michel v. Graydon case was based.

Section 37(2) and (21) of the Ontario Family Law Act, states as follows:

s. 37 (2) In the case of an order for support of a spouse or parent, if the Court is satisfied that there has been a material change in the dependant’s or respondent’s circumstances or that evidence not available on the previous hearing has become available, the Court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order under section 34 that the Court considers appropriate in the circumstances referred to in section 33.

Section 37(2.1) has identical language, but with regards to support for a child instead of support for a spouse or parent.

While the B.C. situation, giving rise to the Supreme Court’s decision, has not been tested in Ontario yet, it stands to reason that this Supreme Court decision would have the same implications for payor parents in Ontario as it does in British Colombia, especially given the similarity of the wording of the family law Legislation in both Provinces.

This means that payors owing back child support can be held liable and forced to pay, even if the child is well past the age of majority and is no longer considered a child of the marriage under the law. Recipients of child support, and even children themselves, who are meant to be receiving support payments and are not, or who are receiving payments that are too low compared to the payor’s income, can apply for retroactive changes into the past, providing that they have a good reason for the delay in bringing such an application.

Paying Child Support for Children Who Are Not Yours

Both Federal and Provincial legislation states that those who have acted as a parent for a child can be required to support that child, even if they are not the biological parent. The term used for this is in “loco parentis,” which is a Latin term meaning, “acting in the place of a parent.” This means that if you move in with a partner who has a child or children from a previous relationship, and you later separate from that partner, you could be required to pay child support for those children, even if the other biological parent is paying your partner support. The likelihood of this occurring depends on numerous factors, but they essentially boil down to the strength of the bond formed between you and the children in question.

There is no deciding factor, however, some of the questions that judges have asked to try and ascertain the level of involvement between a step-parent and a child, include:

  • Was the step-parent involved in the child’s day-to-day activities, such as helping with homework, activities, transportation, preparing meals and bedtime routines?
  • Did the step-parent ever discipline the child as a parent would?
  • Did the step-parent ever financially support the child, such as assisting with school costs, clothing, events, etc.?
  • Did the step-parent treat the child as their own, such as buying birthday gifts, inviting them to family events, include them on vacations?
  • Did the step-parent ever introduce themselves as a parent of the child to others in the community?
  • Did the step-parent ever consider adopting the child?
  • What relationship, if any, does the child have with the other biological parent?

Once a Court decides that a person has stood in the place of a parent for a child, it is likely that they will have to pay child support. It would be unfair, to a child who has relied on you as a parent for a number of years, to suddenly be cut off from that support, physically, emotionally and financially.

The second step would be to determine the amount of support that you would have to pay. Again there are a number of factors, but it could range from the full Child Support Guideline table amount based on your income, a set-off amount taking into account payments made by the child’s biological parent, or no support if a parental relationship is not found. If there is a bond, however, the non-biological parent could also seek parenting time with the child(ren).

The answer to ‘if’ and ‘how much’ child support can vary wildly across jurisdictions and of course depending on the facts in your particular case. Nonetheless, it is important to know that even acting as a parent for someone else’s children could mean that you have to continue to financially support them after your relationship ends, whether you marry the other parent or not.

Call Whitby Child Support Lawyers—We Can Help

It is imperative that you are clear on your child support obligations and entitlements after separation. Consequences for inadvertently underpaying your child support can be severe. Further, the laws surrounding child support can be multifaceted. Contact M. G. Michaels & Associates, Whitby child support lawyers, for a consultation.

Call 905-426-1476 or email us now.