Family Law Act and Divorce Act each require parents to provide support for their children.
- Under s. 2(1) of the Divorce Act a “child of marriage” a child of two spouses or former spouse who:
- Is under the age of majority (18 years in Ontario) and who has not withdrawn from their charge, or
- Is the age of majority or over and under their charge but unable, by reason of illness, disability, or other cause, to withdraw from their charge or to obtain the necessaries of life.
According if the child is over 18 years of age but is still a full-time student or disabled or otherwise ill, obligation of the parents is to continue and support that child.
WHO CLASSIFIES AS A “CHILD OF MARRIAGE”?
- Section 2(2) of the Divorce Act stats that a “child of marriage” is:
- Any child for whom both spouses or former spouses stand in the place of parents, and
- Any child of whom one spouse or former spouse is the parent and from whom the other stands in the place of a parent.
As such, even if the child is not your biological child or you have never formally adopted this child, if you acted as a parent to this child, you may have an obligation to continue and support this child or children.
FAMILY LAW ACT
- Under s.31 of the Family Law Act, every parent has an obligation to support their unmarried children who are minors or are enrolled in a full-time program of education.
Like the Divorce Act, s 1(1) of the Family Law Act defines a child as to include a person whom a parent has demonstrated a settled intention to treat as a child of his or her family.
TYPES OF CHILD SUPPORT ORDERS
- Periodic Support Payments – most common, usually equal monthly payments.
- Time-Limited Support – the court may order periodic support payments to be made either indefinitely or for a definite or time-limited period.
- Lump-Sum Support – usually this type of order are made only if there are serious concerns that the paying party will fail to make periodic payments.
- Securing Support – the court has power to order that the amount payable be paid or secured, or paid and secured in the manner specified in the order. This as well would apply to situations where there is a serious risk that payments are not going to be made otherwise.
- Interim Support – A final determination on child support is not made until trial, however, the need for child support can be immediate. As such the courts have the power to give a temporary child support order until the trial.
HOW IS CHILD SUPPORT CALCULATED?
The child support is calculated according to the Child Support Tables which have set amounts depending on how much the paying spouse is making a year and how many kids are in need of his or her support.
Section 7 of the guidelines state that in addition to the child support the court may order special expenses to be paid for various things including child care, special needs, training, health related expenses, extraordinary expenses for extracurricular activities and so on.
- Extraordinary expenses are defined in s. 7(1) as follows:
- (a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or
- (b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,
- (i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
- (ii) the nature and number of the educational programs and extracurricular activities,
- (iii) any special needs and talents of the child,
- (iv) the overall cost of the programs and activities, and
- (v) any other similar factors that the court considers relevant. O. Reg. 102/06, s. 1.
When making a decision regarding s 7 expenses the court should take into account the best interest of the child or children and the reasonableness of the expense in relation to the means of the parents or spouses. The court will also look at the family’s history of spending on the said activity.