Thursday, March 24, 2005

FAQ Regarding Support

This is an FAQ sheet that I give clients when they retain me with some general information about child and spousal support:

FAQ’S REGARDING CHILD AND SPOUSAL SUPPORT

How do you figure out how much child support is paid?

Child support is normally calculated by reference to the Child Support Guidelines, legislated by the federal and provincial governments. The Guidelines indicate the minimum child support payable based on the payor’s net taxable income (after deducting business expenses, but before taxes) and the number of children. For example, a payor earning $40,000 annually before taxes with two children will pay $570 per month in child support. If the children spend more than 40% of their time with the payor spouse, the amount of child support is usually reduced. The Guidelines are available on-line at the Federal Department of Justice webpage http://www.justice.gc.ca/en/ps/sup/pub/csworkbook.pdf

What about extra-curricular activities, clothing, dental and medical expenses? Does my ex have to contribute?

The Guidelines say that the parties have to share the cost of "extraordinary" expenses in proportion to their incomes in addition to child support. "Extraordinary" expenses are defined by the legislation and the case law to be things such as childcare, drug costs, dental bills (both regular and orthodontic), tutoring, or payment towards "high level" sports (such as rep hockey or competitive dance), although other expenses can sometimes qualify. Regular extra-curricular expenses are not usually included in the definition of "extraordinary". This means that if the children reside primarily with one parent, and that parent receives the Guideline amount of child support, extra-curricular expenses such as sports registration and equipment are paid for by the parent receiving the support with no contribution, unless the activity falls within the definition of "extraordinary". The same logic applies to clothing costs. Expenses that are defined as "extraordinary" are shared, but not necessarily 50/50. They are shared in proportion to your incomes. For example, if the child with whom the children live most of the time earns $30,000, and the payor spouse earns $60,000, the payor spouse will contribute 2/3 of the cost of extraordinary expenses, and the recipient spouse will pay 1/3. Since childcare is included as an extraordinary expense, the payor will contribute his or her share of the net cost of childcare, in addition to paying the Guideline amount of child support.
If you share your children 50/50, or close to it, with your ex, the sharing of extra-curricular and extraordinary expenses can be different than described here.

If I am paying child support, can I deduct it from my income?

Not any more. The federal government passed changes to the Divorce Act and Income Tax Act in 1997 which eliminated the tax deduction for child support. The payor cannot deduct it, and the recipient does not include it as income. If you have an order which pre-dates the changes in the legislation, you can still deduct the money, and your spouse will still have to include it, unless the agreement or order is amended.

How do you figure out how much spousal support is payable?

There are no guidelines for spousal support. If spousal support is payable, the amount is arrived at by considering the need of each party, and the means of the payor to pay. This means it is a very inexact process, and the amounts vary from case to case. There is a body of case law which helps lawyers estimate how much would be appropriate, and usually we refer to previous cases to see what makes sense in each file. The amount and duration of spousal support will depend on the incomes and expenses of the parties; the length of marriage; the obligations taken on by each of the parties for household and child care during the marriage; the health of the parties; and any other relevant factors.

Is spousal support deductible?

Spousal support is tax deductible for the payor, and must be included in the recipient’s income for tax purposes.
Figuring out how much, if any, child and/or spousal support is payable, and whether any extraordinary expenses are payable in addition to support, can be complicated. If you do not retain me, then you should review these issues with the lawyer of your choice. If you do retain me, we will review the implications for you together.

Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665
e-mail mary-jo.maur@bellnet.ca

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