Child Support, Custody & Access

Child Support

Child support in Ontario is, for the most part, based on the income of the parent who is making the support payments.  The first step in detemining the amount of child support to be paid for the children in a family is to find the amount set out in the Ontario Child Support Tables in the Federal Child Support Guidelines associated with the payor parent’s incomeThe payor parent is usually the parent that does not have primary residence or care of the children. Unless the parents share custody of their children more or less equally, the income of the parent who has primary care of the children is not relevant in determining the amount of child support to be paid.

In some cases, a straightforward application of the Guidelines is not appropriate and you should consult a family law lawyer including (but not limited to) the following:

  • where the parents share custody of children on an equal basis;
  • where a child resides with the payor parent more than 40% of the time;
  • where a child is over the age of 18;
  • where the payor parent is not the biological parent of the child;
  • where the payor parent is self-employed;
  • where the payor parent receives an annual lump sum bonus;
  • where the payor parent receives stock options or other benefits from their employer such as the use of a vehicle; and,
  • where the payor parent earns over $150,000.00 per year.

Monthly child support may be inadequate to pay for the cost of additional “special and extraordinary” expenses such as childcare, orthodontics, tutoring, prescription drugs, summer camp, swimming, soccer and other extra-curricular activities. Parents may be required to contribute to a special or extraordinary expense in proportion to their combined incomes if an expense is reasonable, necessary and is thought to be in the best interest of the children.

Custody

This term is frequently confused with the concept of residence. Residence is the scheduled arrangement by which the children share their time with both their parents.  Custody is the right to make important decisions about the care and upbringing of a child or children, broadly falling into the three categories of education, health care, and religious training. A parent can have >sole custody, where that parent has complete decision making authority and the other parent will be entitled to receive information about the children’s health, education and welfare. In most instances parents will have joint custody and share all the rights, obligations, and decision making responsibilities equally. Joint custody requires a lot of cooperation between parents and works best when parents agree on how to bring up the children. When a resolution regarding custody cannot be reached, it may be necessary to go to court to obtain an order for custody and/or access.  Courts are reluctant to order joint custody in circumstances where it doubts the ability of one parent to put the needs of the child ahead of conflict with the other parent. It is up to the court to weigh the best interests of the children in making this decision.

A court may also choose to request the assistance of a lawyer or social worker to represent the interests of the children through the Office of the Children’s Lawyer, a branch of the provincial government which is responsible for giving children a voice in the court process which determines many aspects of their care and upbringing.

The preparation of a comprehensive Parenting Plan, either independently or in the context of a Separation Agreement, is the preferable approach to putting a long term co-parenting arrangement in place. A Parenting Plan can be either an informal arrangement or a highly detailed agreement which includes a schedule setting out who will care for the children and at what times, how decisions will be made on behalf of the children, and what will happen when parents simply cannot agree.  In some circumstances parents are encouraged to engage the services of a Parenting Co-ordinator, usually a Psychologist or Social Worker, to assist them with on-going parenting conflicts.

Access

Where children have their primary residence with one parent, in effect where the children spend 60% or more of their time with that parent, the other parent is deemed to be the access parent. An Access Schedule is put in place to set out the time that the children will spend with their access parent. Shared residence is an arrangement whereby the children share their time equally with both parents.

Supervised access may be ordered by a court in such circumstances that a child is deemed to be at risk of harm if left in the care of one parent. Supervised access can occur in the presence of a designated member of that parent’s extended family or in a Supervised Access Centre. Supervised access can be phased out once the situation becomes stabilized or a parent has established that they are fully capable of caring for their children without cause for concern on the part of the court.

Regardless of the circumstances, Morgan and Phillips LLP is prepared to offer you the best legal advice and professional support to ensure fairness in child custody and access disputes.