The parents cannot agree to reduce or eliminate child support payments as it is the entitlement of the child and not the parent. The court maintains jurisdiction on determining the amount of child support. Child support can be ordered pursuant to the Divorce Act (Canada) for married couples and/or the Family Law Act (Alberta) for unmarried couples.
Child support is payable by the one parent who does not have daily care and control of the children. In other words, the parent who does not live with the children. That parent will pay child support to the other parent for every child under the age of 18 still living at home with the one parent AND for every child over the age of 18 if he/she is unable to “withdraw from the parents’ charge or obtain the necessities of life due to illness, disability or some other cause”. That other cause is usually referring to post-secondary education, on a full-time basis.
If the parents have a shared custody arrangement whereby the children spend at least 40% of the time with one parent and the rest of the time with the other parent, then both parents pay child support to the other based on their income and in accordance with the Federal Child Support Guidelines and then they offset the payments so that the higher income earning parent pays the difference of support to the lower income earning parent.
The amount of child support is determined by the Federal Child Support Guidelines. Once you’ve determined your taxable income (usually line 150 of your income tax return), the table will show you how much to pay based on the number of children. This is referred to as the “section 3 or base amount” of child support.
In addition to the base amount of child support payable, a payor parent may also have to pay a proportionate amount of “section 7 or extraordinary expenses” as well. Examples of these types of expenses include after school care costs, medical/dental insurance premiums, uninsured health/dental care costs (such as braces), any other extraordinary costs for a child (such as tutoring, post-secondary costs) or extraordinary expenses for extracurricular activities.
The amount payable is based on the proportionate income of the parties. So for example, if the father earns $75,000 a year and the wife earns $25,000 a year, their combined income is $100,000. The father’s share of these extra expenses would be 75%. The expense must be an “extraordinary” expense for the non-payor parent in order for that parent to claim from the payor parent.
For the payor parent who is employed and receives a salary, the courts look to line 150 (which is the gross income) of the income tax return to calculate child support.
Where the payor parent is self-employed or paid by a company in which the payor parent has an interest, calculating how much income that person earns for child support calculations becomes more complicated. The court will still look at line 150 of their personal income tax return but the court will also look at the corporate pre-tax income. The income that a self-employed individual claims on his/her personal income tax return may be an income that person chooses to declare and it may not accurately reflect the true income. It is important to seek legal advice and/or accounting advice in order to determine the payor parent’s true income in that case. The court also has the authority to “impute” income to an individual. This may occur when:
You can either collect have child support payments payable through the Director of Maintenance Enforcement. After the court order is granted, you send a copy of the Order to the Director of Maintenance Enforcement along with an application form. The Director of Maintenance Enforcement will collect the monthly child support, record it, and forward it onto the receiving parent. The receiving parent will have a PIN and access code and can access his/her account online at any time to see the status of payments. The Director of Maintenance Enforcement will garnishee wages, bank accounts, suspend driver’s licence and passports if the payor parent becomes significantly in arrears with support payments. The service is free of charge.
Alternatively, parents can agree that the payor parent either direct deposit funds each month into the receiving parent’s account or provide monthly cheques.
To make a court application, you must complete and file the appropriate Application form and supporting Affidavit with the Clerk of the Court. The documents must be served on the payor parent. If you are unaware of what the payor parent’s income is, you can serve that person with a Notice to Disclose which requires complete financial disclosure to you.