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Difference between revisions of "Child Support Guidelines"
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This is, however, only a presumption, and can be challenged or ''rebutted'', as is discussed in this chapter's next section, [[Exceptions to the Child Support Guidelines]]. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross (before tax) annual income at the time the order is made. | This is, however, only a presumption, and can be challenged or ''rebutted'', as is discussed in this chapter's next section, [[Exceptions to the Child Support Guidelines]]. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross (before tax) annual income at the time the order is made. | ||
Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order or the agreement so that the amount of child support reflects the payor's current income. The payor would typically make the application if | Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order or the agreement so that the amount of child support reflects the payor's current income. The payor would typically make the application if their income has fallen, while the recipient would make the application when the payor's income has increased. To avoid a situation where parents are continually making trips back to court to seek an adjustment of child support, it's a good idea to include a term in the court order or agreement that requires both parties to regularly exchange income information in an agreement or order for child support, usually on an annual basis, so that child support can be adjusted from time to time without having to go to court. | ||
Another important presumption in the Guidelines is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligation is not based on the Guidelines amount for the total number of five children. | Another important presumption in the Guidelines is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligation is not based on the Guidelines amount for the total number of five children. | ||
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===Qualifying expenses as "special and/or extraordinary"=== | ===Qualifying expenses as "special and/or extraordinary"=== | ||
Just because an expense appears to fall into one of the categories listed in s. 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared | Just because an expense appears to fall into one of the categories listed in s. 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared. If you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first. | ||
An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families. For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense to get shared but that same $200.00 expense may be a special expense if only $100.00 per month Guideline support is being paid. | An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families. For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense to get shared but that same $200.00 expense may be a special expense if only $100.00 per month Guideline support is being paid. | ||
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According to s. 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider: | According to s. 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider: | ||
*the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation," and | |||
*the necessity of the expense in relation to the child's best interests, | |||
The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by s. 7(1.1). Here's a helpful summary from a 2010 case from our Supreme Court, ''[http://canlii.ca/t/2dpzr Piper v. Piper]'', 2010 BCSC 1718: | The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by s. 7(1.1). Here's a helpful summary from a 2010 case from our Supreme Court, ''[http://canlii.ca/t/2dpzr Piper v. Piper]'', 2010 BCSC 1718: | ||
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When the court is asked to consider a particular expense, it should first decide whether the expense is necessary and reasonable according to the parties' means. For lower income parents fewer expenses will be considered reasonable. | When the court is asked to consider a particular expense, it should first decide whether the expense is necessary and reasonable according to the parties' means. For lower income parents fewer expenses will be considered reasonable. | ||
Daycare will almost always be considered necessary and reasonable, provided that daycare is incurred as a result of the parent’s employment, illness, disability or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents as will whether or not the expenses are tax-deductible. | |||
For parents with more money, more expenses may qualify as reasonable: | For parents with more money, more expenses may qualify as reasonable: | ||
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====Necessity==== | ====Necessity==== | ||
Sometimes the needs of the child will outweigh the cost of the expense to the child, and an expense will qualify as a special expense whether at a hardship to the parents or not | Sometimes the needs of the child will outweigh the cost of the expense to the child, and an expense will qualify as a special expense whether at a hardship to the parents or not: | ||
*Medical costs, including costs that aren't covered by MSP such as autism therapies. | *Medical costs, including costs that aren't covered by MSP such as autism therapies. | ||
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The cost that is being shared is the ''net cost'' of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared. | The cost that is being shared is the ''net cost'' of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared. | ||
Note that the income of a parent's new spouse or partner may sometimes be taken into consideration in determining a parent's | Note that the income of a parent's new spouse or partner may sometimes be taken into consideration in determining a parent's means in sharing a special expense. In the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835 the court held that the s. 7(1) consideration of the ''means of the spouses'' should be interpreted broadly as including all sources of income available to the paying parent, including the contribution of a parent's new partner. Also see a case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844. | ||
==The calculation of income== | ==The calculation of income== | ||
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According to Rule 5-1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and Rule 4 of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules], when someone makes an application for child support, the payor or both the payor and recipient are required to disclose their financial circumstances using a court form called a Financial Statement. Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically: | According to Rule 5-1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and Rule 4 of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules], when someone makes an application for child support, the payor or both the payor and recipient are required to disclose their financial circumstances using a court form called a Financial Statement. Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically: | ||
*the last three years' of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"), | |||
*all notices of assessment and reassessment received for the last three tax years, | |||
*the party's most recent paystub, showing his or her earnings to date, or if the party isn't working, then his or her most recent WCB statement, social assistance statement, or EI statement, and | |||
*business records like financial statements and corporate income tax returns, if the party has a company. | |||
The basic rule of thumb is that a party's income for the purposes of the Guidelines is the amount stated at line 150 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. | The basic rule of thumb is that a party's income for the purposes of the Guidelines is the amount stated at line 150 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. | ||
Income might include: | |||
*bonuses | |||
*rental income | |||
*profit from stock options | |||
*company dividends | |||
*Workers Compensation payments | |||
*long term or short term disability payments | |||
*personal injury awards (that relate to loss of income) | |||
*pension income | |||
*government benefits | |||
*interest from an investment, | |||
as well as employment and self-employment income. | |||
Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. However, if a payor's current income can be known with certainty, such as if the payor is an employee without bonus or commission income, child support can be determined using the payor's current income. | Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. However, if a payor's current income can be known with certainty, such as if the payor is an employee without bonus or commission income, child support can be determined using the payor's current income. | ||
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===Government benefits=== | ===Government benefits=== | ||
Payments from WCB, Employment Insurance, CPP, Old Age Security, and social assistance all count as income under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at | Payments from WCB, Employment Insurance, CPP, Old Age Security, and social assistance all count as income under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future. | ||
Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses. | Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses. | ||
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===Fluctuating income=== | ===Fluctuating income=== | ||
Where a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the ''average'' of | Where a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the ''average'' of their income over the last three years. | ||
===Unexpected losses and gains=== | ===Unexpected losses and gains=== | ||
Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide to take this into consideration in setting the payor's income | Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide whether or not to take this into consideration in setting the payor's income. The court can potentially not consider the loss or gain, if it was a one-time occurrence. | ||
===Court awards=== | ===Court awards=== | ||
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==Imputing income== | ==Imputing income== | ||
To ''impute'' income means to attribute income to a payor above that which the payor claims | To ''impute'' income means to attribute income to a payor above that which the payor claims they earn, usually for making a support award based on that higher amount. Typically, someone asks the court to impute income to a payor where: | ||
*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, | |||
*the payor is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity), | |||
*the payor has quit or been fired from their job, | |||
*the payor moves from full- to part-time work without a very good reason, | |||
*the payor is self-employed and either receives unpaid benefits from their 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, | |||
*the payor has refused to provide full and complete financial disclosure, | |||
*the payor has or will have income from a trust, | |||
*the payor has hidden or appears to have hidden some of their income, and | |||
*the payor is not using resources at hand that could generate income, such as a vacant house that could be rented out or savings that could be invested. | |||
If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special and/or extraordinary expenses may be based on imputed income, including income imputed to the recipient. | If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special and/or extraordinary expenses may be based on imputed income, including income imputed to the recipient. | ||
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<blockquote><blockquote><tt>(g) the spouse unreasonably deducts expenses from income;</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(g) the spouse unreasonably deducts expenses from income;</tt></blockquote></blockquote> | ||
In other words, the court may decide that a payor has a different income than that which the payor says | In other words, the court may decide that a payor has a different income than that which the payor says they have if: | ||
*the payor has quit a job in order to avoid paying child support, | |||
*the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, and | |||
*the payor has tried to reduce their income by claiming unreasonable deductions. | |||
If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in s. 19(1) exist. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income. | If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in s. 19(1) exist. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income. | ||
It's not enough merely to ''argue'' that one of the conditions listed in s. 19(1) exist | It's not enough merely to ''argue'' that one of the conditions listed in s. 19(1) exist; you have to be able to ''provide evidence'' that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, ''[http://canlii.ca/t/1pt18 Nahu v. Chertkow]'', 2003 BCSC 1285 in determining whether a payor is intentionally underemployed or unemployed: | ||
*the payor's education, training and work experience, | |||
*the payor's previous earnings and past borrowing of funds during unemployment, | |||
*the payor's work history, | |||
*the payor's spending patterns and lifestyle, | |||
*the payor's efforts to upgrade their education and work qualifications, | |||
*the nature and quality of the payor's attempts to obtain employment, and | |||
*any evidence that the underemployment or unemployment is motivated by ill will towards the recipient. | |||
This last point, about the payor's ill will, has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 Supreme Court case ''[http://canlii.ca/t/1d2x1 Hanson v. Hanson]'', 1999 CanLII 6307 the court had this to say on the subject: | This last point, about the payor's ill will, has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 Supreme Court case ''[http://canlii.ca/t/1d2x1 Hanson v. Hanson]'', 1999 CanLII 6307 the court had this to say on the subject: | ||
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==Child support and parents' new partners== | ==Child support and parents' new partners== | ||
Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to | Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are now on the hook for support and must contribute to the parent's payments or towards the parent's children. | ||
===Basic child support payments=== | ===Basic child support payments=== | ||
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Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause ''undue hardship'' if the table amount was paid. Payors will <span class="noglossary">claim</span> that the base amount is too high, while recipients will argue that it is too low. This chapter discusses exceptions to the Guidelines more thoroughly in the section, [[Exceptions to the Child Support Guidelines]]. | Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause ''undue hardship'' if the table amount was paid. Payors will <span class="noglossary">claim</span> that the base amount is too high, while recipients will argue that it is too low. This chapter discusses exceptions to the Guidelines more thoroughly in the section, [[Exceptions to the Child Support Guidelines]]. | ||
If undue hardship is claimed, the court will look at the standard of living of each parent's ''household'', rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support; it just means that | If undue hardship is claimed, the court will look at the standard of living of each parent's ''household'', rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support; it just means that their income will be taken into consideration to see whether the usual table amount of support payable is unduly high or low. | ||
===Incomes in excess of $150,000=== | ===Incomes in excess of $150,000=== | ||
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<blockquote><tt>... the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children ...</tt></blockquote> | <blockquote><tt>... the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children ...</tt></blockquote> | ||
In other words, the income of a new partner can be taken into <span class="noglossary">account</span> under the general heading of | In other words, the income of a new partner can be taken into <span class="noglossary">account</span> under the general heading of financial ability of a spouse in determining whether the formula amount is fair. | ||
===Special expenses=== | ===Special expenses=== | ||
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Section 7 of the Guidelines allows for sharing of the children's special and/or extraordinary expenses between the parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into <span class="noglossary">account</span>, among other things "the necessity and reasonableness of the expense in relation to the means of the spouses and those of the child." | Section 7 of the Guidelines allows for sharing of the children's special and/or extraordinary expenses between the parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into <span class="noglossary">account</span>, among other things "the necessity and reasonableness of the expense in relation to the means of the spouses and those of the child." | ||
A parent's new partner's income can be taken into consideration in assessing the | A parent's new partner's income can be taken into consideration in assessing the means of the spouses, which is exactly what the court did in the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835. In that decision, the court held that ''means of the spouses'' should be interpreted broadly as including all of the means available to the paying parent, including the financial contribution of his or her new partner. | ||
Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income. | Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income. | ||
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A number of readers have asked whether they will have any responsibility to make child support payments if their partner, who is a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies. | A number of readers have asked whether they will have any responsibility to make child support payments if their partner, who is a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies. | ||
While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a ''stepparent'' of the child under the ''[[Family Law Act]]''. The act says that all parents, guardians, and stepparents are required to support their children, but s. 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least of one year. In other words, a new partner who marries a paying parent may have an obligation if | While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a ''stepparent'' of the child under the ''[[Family Law Act]]''. The act says that all parents, guardians, and stepparents are required to support their children, but s. 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least of one year. In other words, a new partner who marries a paying parent may have an obligation if they have contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare. | ||
The deceased parent’s estate may, however, be liable for the children and a claim could be made against the estate under the ''Wills Estates and Succession Act'' but this is beyond the scope of this service. | The deceased parent’s estate may, however, be liable for the children and a claim could be made against the estate under the ''Wills Estates and Succession Act'' but this is beyond the scope of this service; consult a lawyer if you find yourself in this situation. | ||
==Agreements and orders for child support== | ==Agreements and orders for child support== | ||
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<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act'', and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children." </tt></blockquote> | <blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act'', and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children." </tt></blockquote> | ||
The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of | The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate. | ||
If the Order is to include special and extraordinary expenses, the Order will usually include the receiving spouse’s income (including spousal support if that is being paid) and the percentage contribution of each parent to special expenses and will also require both parents to exchange income information each year. Disclosure of income by both parents is also required in shared and split custody cases as well. | If the Order is to include special and extraordinary expenses, the Order will usually include the receiving spouse’s income (including spousal support if that is being paid) and the percentage contribution of each parent to special expenses and will also require both parents to exchange income information each year. Disclosure of income by both parents is also required in shared and split custody cases as well. | ||
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The recitals to a separation agreement about child support would include statements like these: | The recitals to a separation agreement about child support would include statements like these: | ||
<blockquote | <blockquote>D. Jane Doe is a plumber working for ABC Plumbing, earning about $72,000 per year.</tt></blockquote> | ||
<blockquote | <blockquote>E. John Doe is a graphic artist working for Sunny Skies Art and Design, earning about $40,000 per year.</tt></blockquote> | ||
<blockquote | <blockquote>F. Jane and John have two children, Jesse, who is 15, and Sandra who is 13.</tt></blockquote> | ||
The operative clauses about child support might say something like this: | The operative clauses about child support might say something like this: | ||
<blockquote | <blockquote>15. Jane will pay child support to John in the amount of $1,092 per month, beginning on 1 April 2013 and continuing on the first day of each month thereafter while Jesse and Sandra remain "children" as defined by the ''Family Law Act''.</tt></blockquote> | ||
<blockquote | <blockquote>16. Jane will give John a copy of her tax return by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote> | ||
Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced. | Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced. | ||
