Who Pays for the Kids when the Parents Split up?

kiran-duhraWhen a married couple separates, there are certain financial obligations that arise automatically. One such obligation is child support. When one party has care of the children more than 60% of the time, that party is entitled to receive child support from the other spouse.

Child support is determined by the Federal Child Support Guidelines and is based on the payor’s income and the number of children the couple have. For instance, if the payor makes $60,000.00 per year and has two children, basic child support will amount to $907.00. If the couple only has one child, child support will amount to $561.00 per month. You can calculate your child support obligation at www.southasianlaw.ca/calculator

In situations where neither spouse has primary care of the children, and where both parties care for the children at least 40% of the time, child support is calculated using a set off formula of child support. For instance: Spouse A and Spouse B have their two children in their respective care for equal amounts of time. Spouse A is an electrician and earns $70,000.00 per year. Spouse B is a teacher and earns $55,000.00 per year. Child support then is based on the difference between their two incomes, which is $15,000.00. Based on the difference, Spouse A will pay Spouse B $245.00 per month in child support for the two children. If both parties earn the same income, neither party will pay child support to the other.

The child support calculator only covers basic child support. Special and extraordinary expenses are expenses that are shared between the parties, sometimes unequally. “Special expenses” can include daycare, extra-curricular activities, private school, dental/medical costs that aren’t covered by the parties’ health plans and post-secondary expenses for the children. Special expenses can become an issue if one party disagrees with the reasonableness or necessity of the expense incurred. For instance, one party may disagree with enrolling the child(ren) in private school because they feel that it is unnecessary. Or they may take the position that they cannot afford it. When these issues arise, you should seek the advice of a family law lawyer to discuss your options.

Income determination is a common problem that arises in child support cases, particularly where the party that is required to pay support is self-employed and/or earns cash under the table. In those types of situations, your family law lawyer can ask the court to impute an income to the payor, over the amount that he/she claims to be earning. You can ask the court to impute an income to the payor in situations where:
1. the payor works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns;
2. the payor has quit or been fired from his or her job;
3. the payor moves from full- to part-time work without a very good reason;
4. the payor is self-employed and either receives unpaid benefits from his or her company (like a company car, paid meals or a free cell phone), or doesn’t report the full amount of money taken from the company;
5. the payor has refused to provide full and complete financial disclosure; or,
6. the payor has or will have income from a trust.

For example: Spouse A is a taxi driver who has to pay child support for his two children. Spouse A claims to only have an income of $15,000.00 per year. Spouse B gives evidence that Spouse A is not declaring his full income, and the income that he’s claiming is not consistent with the expenses he is incurring. The court imputes an income to Spouse A of $75,000.00 per year. Spouse A will then have to pay child support pursuant to that income, regardless of what he has claimed in his income tax return.

If you have a written agreement for child support, i.e. you and your ex-spouse agreed in writing to a dollar figure of support, or if you have a Court Order for child support, you can file and enforce that agreement or Order with the Family Maintenance Enforcement Program (“FMEP”). FMEP will then enforce the agreement on your behalf. Enforcement proceedings can include garnishing the payor’s wages/commissions, putting liens on the payor’s property and even suspending and revoking the payor’s driver’s license or passport. The FMEP will collect on your behalf. More information on this program can be obtained by visiting www.fmep.gov.bc.ca. If you do not have an agreement or Order for child support, you should seek the advice of a family law lawyer who can determine how much your children are entitled to and obtain a Court Order on your behalf.

Kiran Duhra is a family law lawyer in downtown Vancouver. For more information on family law please visit www.southasianlaw.ca or call (604) 684-7794.