Child Support

Who can claim child support?

Spouses who are in the process of getting a divorce or have been divorced and have day-to-day responsibility for a child are entitled to make a claim for child support under the Divorce Act.

Can anyone else claim child support?

Under the provincial Family Law Act a claim for child support can be made by a dependent child, a parent who has day-to-day responsibility for a child or an agency that provides a benefit or assistance to support a child.

Who qualifies as a “child” for the purposes of child support?

A child is defined under the Divorce Act as a child of a marriage. A child of marriage means a child of two spouses or former spouses who, at the material time, is under the age of 18, and who has not withdrawn from their parents’ care/control, or is 18 years of age or older and is under the care of one their parents but is unable to withdraw from their care/control or obtain the necessities of life for themselves because of illness, disability or other cause.

It is generally accepted that a child who is diligently pursuing (not merely enrolled in) their first undergraduate degree or diploma through post-secondary education is unable to withdraw from parental care/control and therefore in need of support. However, the courts will make this determination on a case-by-case basis after evaluating the reasons behind the child being unable to withdraw from parental care/control.

Under the Ontario Family Law Act, child support can only be claimed by someone under 18 or over 18 and in full-time program of education. This applies regardless of whether they were born into a marriage or to an unmarried couple.

Is an adopted child entitled to child support?

Under the Child and Family Services Act, the making of an adoption order makes the adopted child the child of the adoptive parents and therefore entitled to child support from one of the adoptive parents.

Does a parent have an obligation to support a child until they are 18?

The Ontario Family Law Act states that a parent is not obligated to support a child who is 16 years or older and has voluntarily withdrawn from parental care/control.

However, a parent’s obligation to support a child under the age of 16 is absolute and parents with the ability to pay must support a child under 16 even if they have withdrawn from parental care/control.

What if the child stops having a relationship with the parent paying support?

A lack of a relationship between the parent and the child does not stop a child from qualifying for child support. This applies when the parents agreed to limit the relationship between the paying parent and a child or the paying parent decided not to have a relationship with the child .

However, a child who did not have a relationship with the paying parent during their childhood cannot make a claim for retroactive support once they voluntarily withdraw from parental care/control.

Which parent is obligated to pay support?

The parent who does not have day-to-day care/control of the child will usually be responsible for paying child support based upon their income and using the federal Child Support Guidelines.

Who is obligated to pay in split custody situations?

If a couple has more than one child there is a split custody arrangement. Here the amount of child support payable is determined by taking the amount of child support each parent should pay the other and subtracting the lower amount of child support from the higher amount of child support and making the parent with the higher support amount pay the parent with the lower support amount the difference between the two amounts.

How is child support determined in shared custody situations?

Where a parent has care/control of a child for not less than 40% of the year the amount of child support is determined by the following:

  • Taking the amount the Federal Child Support Guidelines say each parent must pay based upon their incomes
  • Calculating how much a shared custody arrangement increased each parent’s costs
  • The living condition, financial means and other circumstances of each parent and child

The problem with shared custody arrangements is that they may encourage some parents to claim increased access or joint custody strictly to reduce their child support obligations.

For more information, please contact:

Shawyer Family Law
504-2300 Dufferin Street
Toronto, ON  M6A 3B2
416-398-4044 ext 25
[email protected]