Who Must Pay Child Support
The non-custodial parent by law is required to pay child support.
Child support is the right of the child. It is not a right of the custodial parent. The obligation to pay child support arises automatically, even if there is no agreement or Court Order.
When To Pay Child Support
The obligation to pay child support commences immediately upon separation or birth of the child. The Court will award retroactive support going back to when the obligation arose or to such other time as the Court deems just. However, the court generally will not go back more than a year before child support was originally requested.
Agreement That Support Does Not Need To Be Paid
Because the child support belongs to the child, parents cannot agree that support does not need to be paid unless there are very compelling reasons. Further, the law does not permit one parent to permanently relieve the other of an obligation to pay. Support is always reviewable at a future date and the appropriate child support amount will be ordered to be paid.
The obligation to pay cannot be bought out by way of a lump sum.
Whether or not the pregnancy was planned and regardless of whether or not a parent agrees to be a parent, the non-custodial parent must pay support. This is true even if the mother lied or became pregnant intentionally but without consent. Support is payable whether the child is a result of a long-term relationship or a one-night stand.
Child Support Amount
The amount of child support a payer is required to pay is set out in the Guideline Tables. The tables were created using a formula which takes into account the cost of living in each province.
The primary factors in determining the amount of child support are the payer`s gross income and the number of children for which support is paid. For most people the gross income is shown on line 150 of their income Tax Return. The Guideline Tables must be applied and any deviation down must be justified by the payer. Typically, a very good reason must be provided for the Court to allow a deviation.
The recipient`s income is not relevant unless there are extraordinary expenses or if the payer is making a Hardship Application.
In the case of extraordinary expenses, also referred to as Section 7 expenses, the recipient`s income is relevant only because she is required to pay her share of these expenses. Thus, her income is needed so that her proportionate share of the expenses can be calculated.
In the case of a Hardship Application, at its most basic, the payer must show that his proportionate family income (available money per household member) is less than the recipients. The availability of the hardship claim is very restricted and very few people qualify. I have only had a couple of files where I could bring a Hardship Application.
Support During Summer Access
A payer is required to pay support even when the child stays with the payer during the summer extended access, unless a Court Order states otherwise.
Although the child is not with the custodial parent for an extended time, the custodial parents child related expenses are not necessarily reduced. They must still have the same housing, for example.
There are some mitigating circumstances. If the child spends approximately 40% of their time with the non-custodial parent, then support may be reduced.
Use of Child Support
The payer of support cannot control how the recipient uses the support except for the Section 7 portion.
The recipient of support is responsible for housing, clothing and feeding of the child and the law assumes that the more money the recipient has the better able they are to provide for the child. In many cases the payer of support pays a relatively small amount and the recipient must make-up the difference required to maintain the child.
Support is payable even if access has been denied.
Access and support are treated as separate issues.