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Child/Spousal Support

Child and Spousal Support

 

Child Support

 

Upon separation, the notion of child support is formalized.  It is not a matter of whether child support is payable, but how much.  The amount of child support is largely determined by each parents annual gross income before tax

deductions, the living (Parenting) arrangement of the children, and the age(s) of the child/children.  Annual gross income of each spouse is part and parcel of the financial disclosure process of a family mediation.  Generally speaking, if one spouse has significantly more parenting time with the children in excess of 60%, then that parent may be entitled to more child support on behalf of the children.  Notably, child support is tax neutral - i.e. the payor may not use child support as a tax deduction and the payee may not include child support as income.  A family mediator will be able to assist the parties in determination of the precise child support amount through use of financial software that is based upon the Federal and Provincial guidelines.  Importantly, a spouse is prohibited from negotiating the amount of child support.  However, the parties may negotiate what the appropriate annual income of the paying spouse is.  Furthermore, the court has authority to order a different amount of child support under certain circumstances.  

Generally speaking, child support payments are intended to continue until the child is capable of financially supporting themselves.  This usually occurs when a child is 18 years old or until they complete their post secondary education.   

Legally speaking, it is common knowledge that the word "parent" is not legally defined.  This infers that a non-biological parent may be legally obligated to pay child support - i.e. step parent.   

Special or Extraordinary Expenses

 

​The Federal Guidelines define “special” or “extraordinary” expenses are also known as "Section 7" expenses.  This category of support addresses expenses that are necessary beyond the base child support payable.  Examples include extra-curricular activities such as swimming lessons, sports/athletics, dental/orthodontics, tutoring, etc.  In certain situations, if one parent becomes ill or otherwise disabled and has the majority of the parenting time with the children, this may give rise to section 7 expenses payable over and above child support.  

Spousal Support

According to section 30 of the Family Law Act spousal support is addressed as follows:

  • "Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so."  

Upon separation, if one spouse is significantly disadvantaged by the lack of income, spousal support may be payable by the spouse that earns a higher income.  The notion of spousal support sets out to maintain a standard of living for the lower income spouse or for example where one spouse is a stay at home parent with no prospect of having the financial means to sustain themselves in the near to medium term.  Consequently, spousal support addresses this by bridging the financial gap between spouses.  Spousal support is taxable as income by the recipient spouse and used as a tax deduction by the paying spouse. 

 

Spousal support may be paid/received monthly or as a lump sum.  Importantly, spousal support paid as a lump sum is tax exempt.  Through assistance by their mediator, the parties may engage in creative strategies by which spousal support is addressed.  The family mediator working with the separating spouses has the ability to calculate spousal support entitlement/obligation through use of financial software in cases where the spouses have agreed that spousal support is warranted.  

Examples of situations that may give rise to spousal support include:

  • First and likely foremost, to assist a spouse that is exposed to a sudden reduction in income, which leaves them in a precarious financial status post separation. 

  • A spouse that sacrifices his/her own income prospects during the marriage to the betterment of the other spouse.  This may include what is termed a "compensatory claim".   

  • The length of marriage.

  • The role of each spouse during the marriage.

  • Age of each spouse at time of separation. 

  • Previous orders (if any) that stipulate whether spousal support was payable and by how much.​​​

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