SUPPORT

CHILD SUPPORT:

Child Support is the monetary contribution paid by one parent to the other to help offset the expenses related to raising their children. The amount of child support payable is generally fixed according to pre-determined amounts set out within the Federal Child Support Guidelines.

If the child (or children) live primarily with one parent (as opposed to an equal or near equal arrangement), the parent with whom the child lives bears a disproportionate financial burden in terms of raising the child. The goal of child support is to improve the child’s standard of living by providing the child’s primary caregiver with added and often necessary funds.

As both parents have an ongoing obligation to financially support their children, the duty to pay child support exists regardless of how little a parent may be involved in their child’s life. Conversely, if a shared parenting relationship exists (in which both parents have the child at least 40% of the time over the span of the year), then the respective incomes of the two parents is generally set-off as if they were both paying the other for child support, although the court has discretion to impose the full child support obligation or something less.

Although biological parenthood is generally the means with which the child support obligation is triggered, a stepparent who is seen as having been in the place of a biological parent can also find themselves bound by this duty to financially support a child in certain circumstances.

The determination of the appropriate quantum and duration of a child support award can be affected by a number of factors but the starting point is to determine the amount of income available to the paying party and the number of children requiring support.

Is it important to note that in a variety of situations, such as when the payor is self-employed, exerts control over a corporate entity or has income which is variable year to year, the determination and imputation of the “accurate” available income on which to base support can become a complex undertaking.

SPOUSAL SUPPORT:

Another type of support which exists, but which is subordinate to a person’s duty to pay child support is that of spousal support. Although the definition of “spouse” is clearly applicable to married couples, the definition is broad enough to include those in a marriage-like relationship, if the application is filed within a required period of time. In addition, both same and opposite sex couples in a marriage-like relationship are included in the definition.

Unlike the automatic duty to pay child support which arises for biological parents, the obligation to pay spousal support is determined based on a number of factors such as; length of marriage, differences in income, economic disadvantages and earning capacity. Entitlement to receive spousal support, which can be based on compensatory, non-compensatory or economic needs, must be made out before a duty to pay exists. Once the threshold of entitlement is met, it is necessary to determine the means available to the payor and payee. Aside from the key determinant of whether or not child support is being paid by one party to the other, the determination of quantum and duration of Spousal Support is guided by the Spousal Support Advisory Guidelines. Although these guidelines are non- binding, they direct the courts to an appropriate range within which an order for payment can be made, which is also useful in order to settle the matter.

Section 15.2(6) of the Divorce Act provides that spousal support orders should:

· (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
· (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
· (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
· (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Similar factors are noted in the Family Law Act.

Analyzing the facts of each case in light of the above noted goals, can have a significant effect on the quantum and duration of support paid. Factors such as the parties’ age or greater or lesser need to become economically self-sufficient, the decision for one party to leave the work force to raise children or to compromise their career goals are also relevant considerations.

Although the divorce regime in Canada is generally supportive of a “no-fault” basis when assessing reasons for relationship or marriage breakdown, it does not mean that misconduct of one party will never be relevant to a determination of spousal support. In it’s decision in Leskun v. Leskun, the Supreme Court of Canada affirmed the position that if a clear causal connection can be drawn between one spouse’s misconduct (for example an affair) and the other spouse’s continuing inability to become economically self-sufficient, the effect of the “misconduct behaviour” can then be a relevant consideration in attempting to determine an appropriate sum for spousal support.

The lawyers at Smyth & Company have considerable experience providing guidance and advice in relation to support matters.
 

SUPPORT

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