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Legal Issues

General Information.
Who is liable to pay child support?
The Divorce Act.
Provincial legislation.
How much support should be paid?
How long will the payments go on?
The bottom-line about child support.

General information.
Child support is money paid by one parent to the other to help defray the expenses associated with raising the parents' child, and, consequently, to help improve the child's living conditions.

If a child lives mostly with one of the two parents, that parent will inevitably bear a disproportionate amount of the child's expenses, such as school fees, food and clothing. Child support is intended to help distribute the cost associated with raising a child between parents.

Child support is paid on the principle that both parents have a positive duty to contribute to the child's upbringing. The simple fact of biological parenthood will trigger this obligation, even if the parent never sees the child and has no role in the child's life. Child support can also be payable by stepparents and persons who stand in the place of a parent for a child. The rules are slightly different for these people, and their obligation is often tempered by a biological parent's obligation to pay child support.

The amount of child support owed is fixed according to the support tables contained in the Child Support Guidelines, which set the amount of support according to the number of children and the payer's income. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

The rules relating to child support apply equally to opposite-sex and same-sex relationships.
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Who is liable to pay child support?
Typically, the non-custodial parent pays child support to the custodial parent for the care and maintenance of the child. Whether an individual qualifies as a parent and is liable for support is determined by the definitions found in either the federal Divorce Act or appropriate provincial legislation.

Where the parties are married and intend to divorce, child support may be sought under either the federal Divorce Act or the appropriate provincial legislation. The Court will make an order pursuant to the legislation that is most favorable to the interests of the child.
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The Divorce Act.
Under the Divorce Act, a person may be required to pay support for a "child of the marriage." This phrase is defined broadly and includes children who are:

  • A child of both of the spouses.
  • A child for whom both the spouses "stand in the place of a parent"; or
  • A child for whom one spouse is a parent and the other spouse "stands in the place of a parent."

In determining whether a person "stands in the place of a parent" the Court will look at the following factors:

  • Whether the child participated in the family, as would a biological child.
  • Whether the person provides financially for the child.
  • Whether the person disciplines the child as a parent.
  • Whether the person represents to the child, the family, the world, either explicitly or implicitly, that the person is a parent to the child; and
  • The nature or existence of the child's relationship with the absent biological parent.

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Provincial legislation.
If the parties are not married at the time of separation, or they are married but they are not seeking a divorce, an application for child support may be brought under the applicable provincial legislation. With respect to child support, there is no substantial difference between the law relating to married and non-married couples except that a stepparent may be liable for support their stepchild if certain conditions have been met. In that case, a different test applies to determine whether a person is obligated to pay child support. It may not be necessary to "stand in the place of a parent" in order to be liable for child support payments. Instead, a person who is neither the biological or adoptive parent of a child may be liable for child support if the person has made a financial contribution towards the support of the child.

You could find yourself paying support if:

  • You were married to a parent of the child; or
  • You lived with the parent of the child in a marriage-like relationship for a certain period of time.

Some jurisdictions require that an action for child support (in these circumstances) be brought within a certain period of time. If you are seeking support from a spouse/partner under these circumstances, consult with a Family Law lawyer immediately to ensure that you do not miss the limitation period to bring the support application.
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How much support should be paid?
In all cases, the amount of child support is calculated on the basis of Child Support Guidelines, which stipulate the support payable. The amount of support is based on the income of the non-custodial parent, generally without regard to the income of the custodial parent.

In addition to a basic amount of child support, the court can also order the parents to share the cost of such additional expenses as day-care, medical and dental expenses, university education and extracurricular activities.
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How long will the payments go on?
Child support is generally paid until a child reaches the age of majority, although the payments can continue beyond then if a child remains dependent because of illness, disability or the pursuit of post-secondary education.

It is important to be aware that child support is not tax-deductible and is not taxable income for the parent receiving the support.
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The bottom-line.
Child support obligations are quite different from spousal support obligations. The payments are set by the Child Support Guidelines for each province, and payments may have to be made by both of the biological parents as well as stepparents or those who stood in the place of a parent.

If you are concerned that you may be liable for support or wonder whether you are able to claim child support following a separation, please contact our offices.
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