Does Ontario Family Law Protect The Interests Of People Paying Support?

When a marriage ends, spouses have certain financial rights and obligations. These include both child support and spousal support. You are obligated to pay child support if the other parent has physical custody of the child or children, meaning that they live with him or her the majority of the time. This makes you the “payor” and the other parent the “recipient” of support.

The other type of support that former spouses may be obligated to pay is spousal support. Under Ontario’s Family Law Act, spousal support is payable to a “spouse,” which includes common law partners if:

• You and your partner have lived together continuously for three years
• You and your partner have a child together and are in a relationship of “some permanence”

Child Support Guidelines

Under the Family Law Act and the federal Divorce Act, child support is calculated based on the legislated Child Support Guidelines. The Guidelines determine the amount with reference to:

• The payor’s income
• The number of children entitled to support

The Guideline tables give the basic amount of child support. In addition to that amount, you may also be obligated to pay support for special and extraordinary expenses, which include things like:

• Child care expenses
• Health-related expenses
• Post-secondary education expenses
• Expenses related to the child’s special needs or talents

Because the amount of child support you pay is tied to your annual income, if your income decreases, usually the support amount will too.

Factors Protecting the Payor

The Child Support Guidelines do not take into account the income of the recipient when determining the basic payment amount, only the income of payor. However, there are certain instances where courts will factor in the recipient’s income when determining the support amount. These include:

• Requests for an amount for special or extraordinary expenses
• Split or shared custody
• Undue hardship of the payor

The court has discretion in determining whether the special and extraordinary expenses are “reasonable and necessary,” and the expenses are shared by the parties in proportion to their incomes.

Shared custody occurs when a parent has custody of or access to a child at least 40% of the time in a year. The support amount is determined with reference to:

• The Guidelines table amounts for each parent
• The increased costs of this custody arrangement
• The circumstances, including needs and means, of each parent and of the child

Split custody occurs when each parent has custody of one or more children. The amount of support is the difference between what each spouse would otherwise pay to the other according to the Guidelines.

Undue Hardship

The court may reduce the basic support amount that you are obligated to pay if you can prove that the Guideline amount would cause you undue hardship.

A court may find undue hardship if you have:

• High levels of debt incurred in support of your family prior to the separation or to earn a living
• High access expenses
• Other dependents to whom you are paying support

Spousal Support Factors

Unlike the Child Support Guidelines, the Spousal Support Advisory Guidelines are not mandatory. When determining entitlement to support and the amount to award within the suggested range, judges will look at factors that include:

• The needs and means of both you and your spouse
• The length of time that you and your spouse cohabited
• Arrangements made in a marriage or separation agreement
• The conduct of your spouse (under the Family Law Act)

If you think that you will be obligated to pay support and want to protect your interests, you should seek the help of an experienced Toronto Family Lawyer and Divorce Lawyers