If your support agreement includes a specific date for when child support will end – such as when the child reaches the age of majority or for as long as the child is going to school full-time – the answer to that question is straight forward: you must continue to pay child support until the date specified in your order or agreement.
If your maintenance order or agreement does not include a specific end date, however, the answer is more complicated.
You can assume that you must pay child support at least until the child reaches the age of majority, but you may have to continue paying child support for some time longer. How much longer depends on your child’s particular living situation and circumstances.
Under the Family Law Act in Ontario, child support is limited to someone under the age of 18 or over the age of 18 and in a full time program of education. Child support must be paid as long as the child remains dependent. A dependent child is any child under the age of 18 unless:
- the child has married, or
- the child is at least 16 years old and has “voluntarily withdrawn from parental control”.
A child who is 18 or older may also be considered dependent if they cannot support themselves because:
- they have a disability or illness, or
- they are going to school full-time. (This usually continues until the child turns 22 years old or gets one post-secondary degree or diploma, but a judge may order support to continue even longer.)
When the judge decides how much support should be paid for a child who is 18 or older, they take into account any earnings or income the child receives from other sources.
Child support continues even if the parent receiving it gets married or starts to live with someone else.
Separation or divorce is the result of problems between parents and not the fault of the child. But it does affect children and they may have questions about the law of separation and divorce. It is often difficult to answer questions in terms that children will understand. The Ministry of the Attorney General published a well rounded resource that explains legal terms relating to all aspects of separation and divorce and child matters in an easy to understand format.
The guide, “A Child’s Legal Guide to Separation and Divorce” contains sections covering;
- Separation and Divorce
- Parental Disagreements
- Changes in Custody and Access
- Parents’ New Partners
- Money Issues
- Getting Help
- Dictionary of Terms
Also included is a list of the books you might want to read about how most children feel when their parents separate or divorce.
Published by the Ministry of the Attorney General Source – Family Law in Ontario
If you need to get or change a child support order under the Child Support Guidelines, the court will require income information.
Child Support Guidelines are determined by a support table based on the support paying parent’s annual income and number of children entitled to support.
Departing from the support table amount is allowed in certain circumstances, shared custody costs, or in some cases of undue hardship.
Documents must be provided by the parent receiving support, only in cases where the amount of child support requested is different from the amount on the support table or in addition to the table amount.
If the request for the amount of child support is the same as the amount on the applicable Child Support Guidelines support table, without variation or any claim for contribution to special or extra-ordinary expenses, then only the parent paying child support is required to supply this information.
- A copy of your personal income tax returns filed with the Canada Revenue Agency for each of the three most recent taxation years together with all material that was filed with the returns.
- A copy of every notice of assessment and re-assessment that you have received from the Canada Revenue Agency for the three most recent taxation years.
- (For those who are an employee) The most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not available, a letter from your employer setting out that information, including your rate of annual salary or remuneration.
- (For those who are self-employed) The following documents for the three most recent taxation years:
- the financial statements of your business or professional practice, other than a partnership; and
- a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom you do not deal at arm’s length.
- (For those who are partners in a partnership) Confirmation of your income and draw from, and capital in, the partnership for its three most recent taxation years.
- (For those who control a corporation) The following documents for its three most recent taxation years:
- the financial statements of the corporation and its subsidiaries; and
- a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length.
- (For those who are a beneficiary under a trust) A copy of the trust settlement agreement and copies of the trust’s three most recent financial statements.
- (For those who receive income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source) The most recent statement of income indicating the total amount of income from the applicable source during the current year or, if such a statement is not provided, a letter from the appropriate authority stating the required information.
Source: Ontario Ministry of the Attorney General
Creating a Parenting Plan
A parenting plan outlines more information and flexibility than traditional custody agreements because they are negotiated and discussed between the parents and address all aspects of child custody. Parents can incorporate as much or as little information as needed and agree to change the plan as your situation requires. A parenting plan outlines the parenting arrangements for a child including a schedule of the times each parent will spend with the child and information about who will make major decisions about education, medical care and more.
The parenting plan needs to be practical, according to each parent’s situation and in your child’s best interests. It’s important to set out ground rules about what information you will share with each other about the children and to decide how you will discuss parenting issues that come up from time to time. This includes information about education and school work, health and dental care, counselling, and who can attend school events, parent-teacher meetings and extra-curricular activities.
What to Consider When Making a Parenting Plan
- Living arrangements and parenting schedules
- Vacation, holidays and special days
- Health care
- Extra-curricular activities
- Grandparents and extended family
- Communication between parents
- Making changes to parenting plan
- Solving Problems
- Child support
Source for detailed discussion points on each topic: Department of Justice
If you have young children, part of your financial obligation will involve some sort of childcare cost. On divorce or separation, the parents will normally share this “special expense”, provided daycare is necessary due to work, education or health reasons. If you are given receipts by the daycare provider, you can claim a deduction on your taxes for daycare expenses. The rule that the lowest income earner must claim the deduction while you are living in the same home no longer applies once you separate and live at different addresses.
Sharing Daycare Expenses in Divorce or Separation
When deciding how to share daycare expenses, the parents must first determine which proportion each of them will pay — will you share it 50/50 or in some other proportion? Will you each pay your share directly to the caregiver or will one of you pay the caregiver or daycare centre and be reimbursed by the other parent? In both cases, you have to take into account the tax deduction. If one parent pays the whole amount, the other reimburses his or her share of the actual cost, once the deduction is taken into account.
It is a sad fact that more than 40% of marriages end in divorce. In addition, some marriages end in a permanent separation but no divorce and are therefore not included in divorce statistics. Despite this high rate of marriage failure, prenuptial agreements remain rare. Of course, it’s easy to understand. Nothing puts a damper on wedding preparations faster than sitting down with lawyers to discuss what happens if your relationship doesn’t last “till death do us part”.
Do You Need a Prenup?
Fortunately, many people do not require a prenuptial agreement. If you do not have children from a prior relationship, own a house, have significant assets, or earn a very large income, while a prenuptial agreement may be of assistance, your rights will probably not seriously be affected by not having one. However, there are many cases where the absence of a prenuptial agreement has a severe effect on one or both spouses if their marriage ends.
The most significant example and the most common in my experience is where one party owns a property before marriage which subsequently becomes a matrimonial home. According to s. 18 of the Family Law Act, a matrimonial home is defined as “every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence …”. For the purposes of property division after a marriage has ended, this means the home or homes you and your spouse lived in on the date you separated. You can have more than one matrimonial home on the date of separation, typically a cottage or other vacation property. You should ask a lawyer whether your vacation property qualifies as a matrimonial home as in some cases it will not.
The Family Law Act in Ontario
Before I explain why sole ownership of a property which becomes a matrimonial home is so significant, I need to explain how property division in Ontario (and most provinces) works on marriage breakdown. In theory, it is a simple process: with a few notable exceptions (see s. 4(2) of the Family Law Act), you are essentially dividing all assets that accumulated during the marriage. You calculate your net assets on the date of marriage, and again on the date of separation, and arrive at what is referred to as your net family property. Your spouse does the same calculation. Whoever has the highest net family property makes a payment to the other spouse to equalize the amounts. This payment is known as an equalization payment.
Unfortunately for many people, the notable exceptions I mentioned often produce unfair results. There are many examples involving inheritances, gifts and damages awarded by a court. I will address some of these examples in other blogs. However, in my experience, it is an exception that relates to the value of a matrimonial home on the date of marriage that causes the most trouble. This exception to the straightforward division of assets can be found in the definition of net family property in s. 4(1) of the Family Law Act. The definition specifically removes the value of a matrimonial home from the calculation of assets owned on the date of marriage. The significance of this cannot be overstated. What it means is this: if you own a home or vacation property on the date of marriage which becomes a matrimonial home and remains so until the date of separation, you must include the entire value of the property in the calculation of net family property, not just the increase in equity which accrued during the marriage.
Here’s an example to make it clear: assume you had $300,000 in a bank account on the date of marriage and you just left it there until you separated. Over the course of the marriage it earned $50,000 in interest. If neither party had other assets or debts, you would pay your spouse one half of the accumulated interest on separation, or $25,000. Now, assume you owned a home on the date of marriage with $300,000 equity and you still resided in that home with your spouse on the date of separation. During the marriage the equity in the home increased to $350,000. If neither party had other assets or debts, now you owe your spouse half of $350,000 or $175,000. In this example, you owe your spouse an additional $150,000 because your date of marriage asset was a matrimonial home rather than a bank account.
Divorce & Family Law: What Should a Homeowner Do?
It is not often that I can offer simple solutions to such a serious issue, but in this case I am please to be able to do so. Perhaps that is why the Ontario government has ignored the recommendations of the Ontario Law Commission for the last 20 years to change this unfortunate law. In any event, there are two ways to avoid the unfair result of this matrimonial home exception.
This first solution is to enter into a prenuptial agreement. If you are already married, you can enter into a marriage contract and still accomplish the same thing. I cannot emphasize enough that this document should be drafted by an experienced family law lawyer.
But what if your spouse refuses to sign a prenuptial agreement or marriage contract? The solution is actually more straightforward and reliable from a legal perspective. Sell your home or vacation property after you get married but before you separate. Once the home is sold, it can never be a matrimonial home and you will be able to preserve your equity in the property as a date of marriage asset. Your date of marriage equity will still be preserved even if you invest the sale proceeds in another property. This solution does not depend on an agreement the validity of which may be challenged by your spouse after separation.
For those residing in the Pickering, Ajax, Whitby and Oshawa area, here are some helpful links to local resources:
Durham Family Court Clinic:
Family Law Information Centre, Oshawa:
Michael Reilly is a family law lawyer and mediator practising in Pickering Village, Ajax, Ontario.