There is a
common misconception that in a "50/50" living situation, neither
parent has to pay child support. Unless there are exceptional
circumstances, the higher income earner should be paying the net
difference in the parties' respective Table amounts
Note: all of the following information can be found through
links provided on the Ontario Ministry of the Attorney General’s
and the Canada Justice Department’s websites:
www.attorneygeneral.jus.gov.on.ca/english/family/divorce/support/
and
www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/index.html
The following is from Section 11(1)(b) of the Divorce Act:
[In a divorce proceeding, it is the duty of the court] to
satisfy itself that reasonable arrangements have been made for
the support of any children of the marriage, having regard to
the applicable guidelines, and, if such arrangements have not
been made, to stay the granting of the divorce until such
arrangements are made.
Section 9 of the Federal Child Support Guidelines states:
Shared custody
9. Where a spouse
exercises a right of access to, or has physical custody of, a
child for not less than 40 per cent of the time over the course
of a year, the amount of the child support order must be
determined by taking into account:
(a) the amounts set out in the applicable tables for each of the
spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions,
means, needs and other circumstances of each spouse and of any
child for whom support is sought.
In a straight, 50/50 arrangement, the higher income earner would
normally be ordered to pay the net difference in the parties'
respective applicable Table amounts, unless there are ‘special
circumstances’ that directly or indirectly benefit your
children, or if the payment would cause an undue hardship on one
parent. See Section 10 of the Federal Child Support Guidelines
re ‘undue hardship’.
For a generic, 50/50 example, let’s say that: (a) there are two
children; (b) Parent 1 earns approximately $100,000 per year;
(c) Parent 2 earns $50,000; and (d) the parties live in
Ontario:
Step 1:
determine the applicable Federal Child Support Table amount for
each parent as if the children resided full-time with the other
parent (see
www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp
)
Parent 1 Table amount:
$1,404
Parent 2 Table amount: $
753
Step 2:
Determine the ‘net difference’ by subtracting the lower amount
from the higher amount: $651
Parent 1 pays Parent 2: $
651
In this ‘generic’, no
special circumstances, no undue hardship, example, Parent 1
would probably be ordered to pay Parent 2 child support of $651
per month in a contested application re child support.
If Parent 1 was the one to file for divorce, it is pretty much
guaranteed that unless there is a recent court order ordering a
lower amount, the judge will not grant the divorce until her or
she is paying in accordance with the Guidelines. (The judge
would likely ignore a separation or other written
agreement for a lower amount unless the agreement shows clear
‘special circumstances’ or ‘undue hardship’.)
If Parent 2 (or any
parent who is not receiving the applicable “Table” amount from
their spouse), were the one to file for divorce, the divorce
could still be rejected/delayed by a judge (with the reason
often being ‘child support is not for you – it is for the
child’) unless and until you either: (a) get your spouse to pay
the proper amount: (b) convince the judge that he/she should
accept your determination of ‘special circumstances’ or ‘undue
hardship’ to your spouse; or (c) start/complete a separate
application for child support. This may seem extremely
unjust to you - it is. Feel free to write to the Attorney
General and your MP.
In my humble opinion, Section 11(1)(b) of the Divorce Act
should be amended as follows:
[In a divorce proceeding, it is the duty of the court] to
satisfy itself that reasonable arrangements have been made for
the support of any children of the marriage, having regard to
the applicable guidelines, and, if such arrangements have not
been made and the divorce applicant is the support payor,
to stay the granting of the divorce until such arrangements are
made.
or something along those lines…
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