Family Law 101: Child Support (and Parenting)

In a previous post I explained that in order for a court to grant a divorce only three things need to be settled:

1. The amount of spousal support to be paid (if any) and duration;

2. The amount of child support to be paid, and things related to parenting; and

3. Matrimonial property matters.

In the previous blawg post I addressed issues pertaining to spousal support. In this post I will address how child support works as well as parenting generally.

Some Definitions

Before diving into the minutiae of child support and parenting, it is important to first establish some definitions, as the terms used when referring to the children of a marriage are not necessarily intuitive.

First, “custody” is a term that is used a lot when referring to children and is often used by people to refer to who physically has the child(ren) in his or her care. When lawyers refer to custody what we mean is the parent or persons who have the right to make decisions about how the child(ren) will be raised, however this does not need to be the same parent or persons with whom the child lives. For example, I might have custody over a child, however the child may live with my brother. However, since I have custody (or shared custody with someone else), I have the right to make decisions regarding how the child will be raised, including what religion he or she is going to be brought up in (if any), what people the child may associate with, where the child goes to school, and what type of elective medical treatments the child will undertake (such as whether or not to vaccinate the child). If we are referring to a child of unmarried people, then we use the term “guardian” instead of custody.

When referring to time that a parent gets to physically spend with a child, we refer to it as “access”. For example, a child may regularly live with my ex-wife, however I may have a right to access each Wednesday evening for two hours and every second weekend. When referring to a child or children of unmarried people then the term that we use instead of access is “parenting time” or “contact”.

While the terminology referring to children and parenting is often used very loosely, it is important to understand the difference when reading legislation, court orders, or agreements.

Types of Child Support

Under the Federal Child Support Guidelines (SOR/97-175) (the “Guidelines”) there are two different types of child support that are payable: the first is often referred to as “section 3” support and the other is “section 7” support.

Section 3 Support

Section 3 support is the starting point when calculating how much child support is payable. This is the basic amount (as set out in a table) that the paying parent must pay to the receiving parent for their portion of the costs of raising the child(ren). The amount that will be paid is to be used for the purposes of helping to cover the day to day expenses of raising a child, such as buying food, clothing, and toys. While parties are free to agree to an amount in excess of what the table requires, it is important to note that courts have consistently maintained that child support is the right of the child(ren) and not of the receiving parent. As a result, any agreements between the parents that no child support will be paid will almost certainly be invalid and unenforceable even if in writing and witnessed.

If a justice is faced with a situation where the payor has little money and they have to determine whether spousal support will be paid or whether child support will be paid, child support will almost always be paid first. While justices can deviate from the Guidelines, it is exceedingly rare for them to do so. The eight circumstances under which a justice can deviate from the Guidelines are:

1. When children are at or over the age of majority (section 3);

2. When incomes are over $150,000.00 per year (section 4);

3. When there is a spouse in place of a parent (section 5);

4. When there is split custody (section 8);

5. When there is shared custody (section 9);

6. When there is undue hardship (section 10);

7. When special provisions have been made for the benefit of the child(ren) (section 15.1(5) of the Divorce Act); and

8. When the parties have made another allowable agreement (section 15.1(7) of the Divorce Act).

Absent one or more of the above, a justice will apply the table set out in section 3 of the Guidelines to come to a determination of the section 3 child support payable. These tables consider various factors, including the annual gross income of the paying parent, the number of children involved, and the province of residence of the paying parent. You can look up the amount of child support that you might owe at the website: https://www.justice.gc.ca/eng/fl-df/child-enfant/2017/look-rech.asp.

Section 7 Child Support

While section 3 child support is meant to cover the day to day expenses of raising a child, section 7 of the Guidelines deals with "special or extraordinary expenses". These expenses include:

1. child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment (note that child care expenses resulting from other reasons are not section 7 expenses);

2. that portion of the medical and dental insurance premiums attributable to the child;

3. health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

4. extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

5. expenses for post-secondary education;

6. extraordinary expenses for extracurricular activities; and

7. other expenses as agreed to by the parties.

When parties disagree as to whether or not something is or is not a section 7 expense, courts will take into consideration:

1. the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

2. the nature and number of the educational programs and extracurricular activities,

3. any special needs and talents of the child or children,

4. the overall cost of the programs and activities, and

5. any other similar factor that the court considers relevant.

When it comes to paying for section 7 expenses, a different approach is taken than when paying section 3 support. Instead of table amount applying, the simply apportions the expense based upon each parent's income. For example, if I am making $150,000 per year and my wife is making $50,000, I will pay for 75% of the section 7 expense and she will pay for 25%.

A Hypothetical Example

For the purposes of discussions regarding child support and parenting which follow, we are going to use a hypothetical five-person family: myself, my wife, our eldest child Alex, our middle child Brittany, and our youngest child Christopher. Let us assume that last year I made $235,846 and my wife made $82,847. We all live in Alberta.

If we assume that all three of the children live with my wife 85% of the time, then all we do is take my income last year and enter it into the calculator on the website referred to above, along with the number of children and the province of residence. As a result, I will owe my wife $4,174.71 per month for section 3 child support. Note that in this calculation my wife's income does not matter. As the three children are living with my wife most of the time, the Guidelines assume that both my wife and myself are going to be contributing to raising them. As they live with her, the Guidelines deem how much have to pay, but not my wife.

If we assume that all three of the children live with my wife and myself exactly 50%/50% (or even to 60%/40%) then we run the same calculation performed above to determine how much I am going to pay to my wife (which remains the same with me paying my wife $4,174.71 per month), but then we also run the calculation a second time using my wife's income and assuming that the children are living with me. At $82,847 per year, my wife would be paying me section 3 child support in the amount of $1,599.92 per month. Sometimes a couple may offset these amounts and take the difference ($4,174.71 per month - $1,599.92 per month = me making one payment to my wife of $2,574.79 per month). However, when there is more than one child, there is often a tax benefit known as the Eligible Dependent Tax Credit which can apply if both parents actually make the monthly payment amount. While the tax considerations involve there are beyond the scope of this blawg, it is important to talk to your lawyer about this situation.

Now let us assume that Alex is 24, living at home, and going to university while Brittany is 22 and living across country, also while living in university, and Christopher is 16 and in need of expensive orthodontics and hockey equipment. Under the Guidelines post-secondary expenses and health related expenses are deemed to be section 7 expenses. As a result, we look at the total amount of income that my wife and I made last year, which is $318,693 ($235,846 + $82,847). I will be responsible for covering 74% of the section 7 expenses ($235,846/$318,693 = 0.7400) and my wife will be responsible for covering 26% of the expenses ($82,847/$318,693 = 0.2600).

However, in addition to these section 7 expenses there are still section 3 expenses. Christopher is only 16, so section 3 will still apply to him. What about the other two however? This is an area where the law is not clear. Alex is older, however still living at home and going to university, so section 3 may still apply to him. Brittany is younger and in university however she is living away from home and independent. Section 3 may not apply to her. When section 3 expenses end is not something that is easy to determine.

What about Christopher's hockey expenses though? Hockey is an extracurricular activity, but are the equipment expenses "extraordinary"? If we look at the 5 factors set out above to help determine this, we need more context. Has Christopher been playing hockey since he was 4 years old, and has a realistic chance of playing professionally? Then this will likely be a section 7 expense. Is this one of a dozen different sports that he casually plays? Then this will likely not be considered a section 7 expense. Is this one of a dozen sports that he plays, however removing him from hockey may have serious negative repercussions on Christopher's life because he may be able to get a scholarship to university? Then this will likely be considered a section 7 expense.

Final Thoughts

Raising children is not cheap. However, when parties go through a divorce who continues to pay for raising the children, in what amounts, and when, is a highly technical area of law. The Guidelines set out clear amounts for section 3 support. However, when this support ends is not nearly as clear. Likewise, section 7 sets out some very clear expenses and how these expenses are to be apportioned. However, when it comes to other large expenses which are not specifically listed in the Guidelines whether or not these are section 7 expenses can be highly context specific. Child support issues are not simple to determine. If you are unsure how child support applies in your specific case, you should speak to a lawyer for further information.