Parents provide financial support for their children. After the parents separate, one might pay child support to the other parent to equalize the costs of raising the child. Depending on the nature of the family, step-parents and anyone who stood in the place of a parent might be required to pay child support.
A child eligible for support must be under the age of 19, or over the age of 19 but unable to withdraw from the care of the parents (perhaps due to illness or disability, or while pursuing post-secondary studies).
Tax treatment of legal fees relating to child support might be relevant in your circumstances. Child support is no longer a tax deduction to the payor, nor is it taxable in the hands of the recipient. However, a lawyer’s bill for obtaining and enforcing a child support order is tax deductible, while the cost of defending a claim for child support is not.
In most circumstances, child support is determined by the federal Child Support Guidelines (the “Guidelines”). The Guidelines were adopted in British Columbia in 1998.
The Guidelines consist of a set of rules and tables for calculating the amount of support paying parents should contribute to their children. The Guidelines were designed to make child support fair, predictable and consistent for children. The Guidelines provide a table of child support payable depending on the payor’s income and the number of children eligible for support. A parent’s income is often determined by income tax returns.
In addition to the base amount of child support payable, there might be “extraordinary expenses” payable: extraordinary expenses include costs for education fees, health/dental care or extra-curricular activities. The costs of raising the child are meant to be shared by the parents, but also depend on the parent’s proportionate incomes.
The court retains discretion to depart from the amount set by the Guidelines in a few circumstances, such as where the paying parent’s annual income exceeds $150,000 or where paying the Guidelines amount would cause “undue hardship” to a parent. When a court is asked to consider the question of whether the Guidelines amount is causing undue hardship, the courts look at the standard of living of the household rather than the parent alone. This may be applicable where a spouse receiving support remarries a high earner and the payor spouse has the child for a large percentage of the time.
The courts only depart from the Guidelines amount where the table amount is “unsuitable” and there is “clear and compelling evidence” to rebut the presumption that the table amount is appropriate.
Split/Shared Custody Arrangements
Where parents have “split custody”, each parent has custody of one or more of their common children. The amount one parent pays is determined by adding up the amounts that each parent would pay for support of each child separately, and comparing the different totals owed by each parent.
In a “shared custody” arrangement the parents each have the child an equal (or nearly equal) amount of the time. So long as each parent has the child for at least 40% of the time, it is shared custody. Child support may still be payable, and the amount payable will depend on the relative incomes of the parents. Calculating parenting time, and whether it amounts to 40%, can be a difficult process. Courts will try to average the amount of time the children spend with each parent. If the payor parent has the children less than 40% of the time, more support may be payable. The courts will look at each case separately, and will consider such factors as the increased costs to the paying parent resulting from the sharing arrangement.
Variation of Child Support
After a court has made a child support order, the order can be changed if there is a change in circumstances. Commonly, the change in circumstances is an increase or decrease in the paying parent’s income. When a parent is trying to vary the child support payable, the courts expect to see financial statements documenting assets/liabilities and income/expenses. Sometimes courts order changes to child support that are retroactive to the date when the payor parent’s income changed.
Recent court decisions have held that payor parents must act in utmost good faith and report income information even where the recipient parent does not request it.