Child Support, Spousal/Partner Support

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Child support comes into play whenever there is a child of the relationship, whether the parents were married or not, and whether the parents are biological, adoptive, or sometimes even step-parents. Parents have a responsibility to financially support their children whether the child lives with that parent or not and whether the parent has a relationship with that child or not.

FAQ

Amount (Section 3 Child Support)

There are two types of child support. Regular, ongoing child support that is paid monthly and is meant for the basic living expenses of a child is referred to as “section 3 child support”. The amount of section 3 child support to be paid is based on the payor’s income, province, and the number of children. While this might seem simple enough, it often is not, particularly when there are issues in determining the payor’s income. For instance, if the payor does not pay income tax, is self-employed, earns income “under the table”, or is intentionally unemployed or underemployed.

The amount of section 3 child support to be paid changes if the parents have shared parenting (i.e. when the child lives with one of the parents at least 40% of the time, and the remainder of the time with the other parent), or if they have split custody (e.g. one child lives primarily with one parent, and the other child lives primarily with the other parent). In these cases, the amount to be paid is calculated using a special set-off formula that takes into consideration the income of each parent.

Extraordinary Expenses (Section 7 Child Support)
A separate amount of child support is also paid for extraordinary expenses. These are often referred to as “section 7 expenses”, extraordinary expenses, or special expenses. Both parents are responsible for section 7 expenses. The amount each parent is responsible for is often a percentage based on each parent’s income. Some examples of section 7 expenses include childcare, health/dental/vision care not covered by insurance, extracurricular activities, and some schooling expenses, often including college or university tuition and books. However, what is a section 7 expense is not always clear, particularly if the parties can’t agree on what qualifies or whether the expense should be incurred at all.
Adult Children
While you might think that child support is only payable until the child turns 18, there are exceptions to this, including if the child attends post-secondary school or has a disability or illness that leaves them financially dependent on their parents. Special rules then apply to the calculation of child support.
Spousal Support and Partner Support
Spousal support can come into play when the parties were married or in an adult interdependent relationship (similar to “common law” spouses, in which case the term is “partner support”).

While child support is mandatory when you are a parent, spousal support is not automatic, the recipient must prove that they are eligible. Whether a spouse is entitled to support is based on a variety of factors, such as how long you lived together, what functions you each carried out (e.g. stay-at-home parent or homemaker, part-time employment, full-time employment), how much you each earn, your financial needs, and personal conditions such as your age and health.

Amount of Spousal Support

Once entitlement to spousal support is established, the next issue is amount and duration (i.e. how much, and for how long). Again, this is very fact dependent. While the federal government has established the Spousal Support Advisory Guidelines, they are not mandatory like the Child Support Guidelines. The formulas are complex, and they do not provide one clear answer. Instead, they produce a recommended range for both the amount to be paid monthly, and for how many years that amount should be paid.

After that, courts are to consider several other factors, such as whether one spouse is bearing a disproportionate amount of debt or whether they have any unusually high expenses such as medical expenses. Spousal support can be paid monthly, or in a single lump sum.

Just like with child support, calculations can become complex where either spouse is self-employed. Barr Picard Law has a practice group of lawyers who handle divorces and separations involving family businesses or farms.

There are several techniques to challenge spousal support, and whether you’re the payor or the recipient, our experienced Family Law lawyers can help you address them.

Retroactive Support and Arrears or Overpayment
Child support and spousal support arrears occur when a person does not pay the amount they should have. Retroactive child or spousal support occurs when a period of time has passed where a person hasn’t paid adequate support. For example, the period after a couple separates but before a court order for child support or spousal support is made. This can be just a short period of time, or it could go on for years. There are rules about how far back a court can make an order. In some cases, it might also be possible to seek compensation for an overpayment, or a reduction in arrears.