What to Expect from the Child Support Process
Child support is a legally binding obligation on a parent to pay for the raising of children after that parent’s relationship with the other parent breaks down. Child support may be court-ordered or it may come about after seeking assistance for matters pertaining to family law in Winnipeg. One parent, typically the “non-custodial” parent, whose children do not stay with them, pays the other, the “custodial parent”, on a regular basis.
Although child support tends to relate to minor children, it also extends to children who are “unable to withdraw” from the “charge” of their parents; this typically involves children in post-secondary education or children who with disabilities.
How is Child Support Calculated?
The value of child support primarily depends on the relative income of the parents and where the children a physically residing. Under the Child Support Guidelines, judges and lawyers compare one party’s yearly income to the other, along with the number of children, and the charts in the guidelines provide an answer. If the children reside with both parents within 41 to 59 percent of time, then the parents typically each pay support to each other based their taxable income. Logistically, this translates to the higher income earner paying the support differential monthly to the lower income earner after offsets are considered.
A similar approach is taken if each parent has at least one child, it is as if each parent paid support to the other, with the result being that the parent with the greater obligation has their payments reduced by that of the other parent.
Child support is not flexible. Child flexible can be adjusted to accommodate certain situations, but in general, it is a mechanistic process, with courts possessing relatively little discretion to deviate from the guidelines.
Snow v Snow, 2013 ABQB 146 (CanLII) provides an interesting example of a corner case with three payors of child support. Sheila & Jeremiah Snow’s granddaughter lived with them for ten years, from her birth in 1996 until the pair split in 2006; the court does not make it clear where the child’s mother and father were. As the grandfather had been standing in loco parentis, or in place of the parent, Sheila could pursue him for child support. But when she brought an application, he brought another claim against the child’s parents. In this case, the court determined that the child was entitled to not only what her grandfather could provide, but also to what her biological parents could afford.
Payment Amount Exceptions
Several factors can result in a deviation from the child support table amounts. This includes special expenses, which relate to a particular need or talent of a child (such as health care, education, or training) and extraordinary expenses (disproportionately large to expect one parent to cover them alone). Where the tables are applied to a parent with more than $150,000 in annual income, judges have more discretion to lower awards.
Judges can also award different results if the table would result in “undue hardship.” As in much of family law, the threshold for moving away from legislated results is high. In Denman v Jamieson, 2013 ABQB 84, a father who had recently moved from Alberta to the Turks & Caicos was successful in his application. This case also addresses the concept of imputing income, in which the court essentially makes its best educated guess as to the income of a parent is actually earning or is capable of earning and works from there.
As Mr. Jamieson had been qualified as a teacher in Alberta, the court worked from the wages of a first-year teacher Alberta. His child support payments were based from a previous assessment of his income as $80,000 annually, and particularly because he had been spending a lot on the child recently, the court agreed that his payments were unduly harsh in the circumstances and reduced them.
What Happens if Parents Cannot Agree to an Amount?
In general, child support is resolved by settlement. However, this is not always possible; there may be bona fide legal issues that are not clear, the parents may hold a grudge, or there may be a significant imbalance of power, making negotiation inappropriate.
If you were unmarried, you can resolve these issues in family court. However, if the child support relates to a divorce, you will need to proceed through the court of Queen’s bench.
Regardless, either parent can make an application for child support to a court, after which the court will determine the issue after considering the Family Law Act and the Child Support Guidelines.
Note that, even if there is a child support agreement in place, the parties to the agreement can still apply to the court for an order “overriding” the order if the court does not consider the original agreement to be sufficient.
How to Handle Situational Changes
Changes to either you or your former partner’s living or economic situation that affect the criteria above can modify child support arrangements. There are some exceptions, such as if the court believes one parent is withdrawing from employment for pleasure or making a personal decision to trade income for leisure. In these situations, the courts can decline to modify the arrangements.
If there has been a “material change” in circumstances, such as responsibility for a new child or the loss of a job, either parent can make an application to the court, and have the court determine whether payment should be updated.
Some agreements, made under the Alberta Child Support Recalculation Program, are updated annually, applying the guidelines to parental income.
Contact Cassidy Ramsay for Family Law in Winnipeg, Manitoba
If you are considering applying for child support or are facing an application, contact Cassidy Ramsay. Our lawyers for family law in Winnipeg can assist you at 204-943-7454. We routinely handle and resolve legal matters involving separation and divorce in Winnipeg and the surrounding areas.