Please help educate me on child support in Canada/Ontario

[~Nikki~]

Background here is that we've been separated for about 2 years now.  We originally each had the kids 50% of the time, and decided together that as we had comparable incomes, and each had the kids equal amounts of time, that child support didn't make sense for us.  We agreed to split kid expenses 50/50 (daycare, snow-suits, extra-curricular activities, things like that), but would cover our own household costs as it made the most sense.  This was written into our separation/custody agreement.

As time went on and it became clear I had the kids more and more, I asked him if he could maybe toss me some extra money every now and then to cover the extra expense of keeping them so that he could work.  He said of course.  He gave me $15.  Once.  For a month of having two kids....  That has been the only "child support" thus far.

In August of last year we amended the separation agreement to state that I would have primary physical custody.  He was going out of town for work, and couldn't maintain the 50/50 arrangement any longer.  Again, no child support was offered or discussed.  He still pays 50% of the daycare cost, and occasionally will pay for half of the cost of other expenses, but it's like pulling teeth to get any money from him.  He pays me when it suits him.  When he owes me money, it's not unusual for him to go 2 or more weeks without contacting the kids at all, as he's avoiding me.

I asked ahead of time if I could put the kids each into an extra-curricular activity.  Total cost would be $200.  That's $100 that each of us is expected to pay.  He said that was fine.  When I said "ok, it's time to pay now", he said he couldn't pay until the following week.  The following Friday came, pay day, and he said he would send the money through an email transaction after work that day, and I said ok.  Nothing.  It's now Monday.  Nothing.  I have sent him two emails and left a phone message.  Nothing.  He is dodging me again.

Ok...so that's the background!  A bit long winded, sorry about that.

I guess my question is - where do I go from here?  My lawyer clearly sucks if she allowed this situation to even get to this point.  Before I go shoping for a new one (which I can't afford right now anyway), I want to find out a bit about how official child support works.

1) It's based on his income.  He works under the table (sorry, SOME of his income is on the books, but he works for his father and gets paid in cash when he needs to, so it's easy for him to hide what his salary is).  I've read they can base it on what a person in his field is CAPABLE of making.  Is this valid?  Will they do this given the situation?  Or can he worm his way into showing that he only makes a piddly income?

2) If I'm receiving official child support, will he still be obligated to pay half of daycare?  Or will that then be my expense?  I guess my concern is that, given his work situation and the fact that he can make himself look very poor, they may award me LESS than what I'm getting now for daycare.  I get no extra money for food/day-to-day expenses for having the kids full-time.  Like I said, he'll occasionally pay half for a snowsuit or what not, but lunches, field trips, school expenses, hair cuts, clothing, etc...that's all been on me so far.

3) The only reason, the ONLY reason I haven't looked into this so far is that I'm afraid that if I open the child support can of worms, he'll retaliate by trying to get the kids 50% of the time again.  He's a terrible care-giver.  I don't want this to happen.  But he HAS threatened to get child support from me, before, when he had this crazy lawyer who only knew his side of the story (obviously) and wouldn't have known that his income isn't as low as he claimed.  So I worry that opening this can of worms will cause a huge heart-ache of having to fight for my children and possibly having to pay HIM, if we go back to 50/50.

I've looked at websites, etc, but was hoping to get some first-hand experience of how this could all go down.  Lawyers and courts frighten me.  I'm so worried I'll get screwed in the end. =/ 

[Mummoth]

The word for assigning an income to a person based on their previous training/what is typical for a person in their field is "imputing." This was done in my case, but they imputed ex's income using previous years' tax returns. 

At least in BC, daycare is not included in child support. It isn't necessarily 50/50, it's based on the parents' income... it could be a 75/25 split or something... 

He may try to get 50% custody back. Court has probably seen it countless times... I'm guessing that if you approach it as "I want the kids to have excellent access/visitation with ex, however I feel that their sense of stability has improved with the routine of living primarily with me. It's not in their best interest to go back to 50/50." (or whatever your reasons are for feeling that the current custody arrangement is best for the kids) that you'll have the best luck.

Have you looked at a child support calculator online? I know there's one for BC... I'd want to know exactly how much $ per month I'd be looking at with child support vs. not dealing with court. Do you think that just showing him what your children are entitled to from him would help? Maybe you could find a compromise between what court would order he pay, and what you're getting now.

[~Nikki~]

I can try the online calculator, but unfortunately it won't be much help.  He claimed to have made about $4500 last year.  His rent alone is $1400/month.  Do the math.  I'm pretty sure he probably triggered an audit for himself.  Sigh.

[Mummoth]

Try the calculator with an income you feel is reasonable for him. My ex's income was imputed to be $55,000., and the Judge commented that this was quite low, considering that he is an electrician. Do you have proof of any certification/diplomas he has? If you can show that he's underemployed, they will impute his income.

Since he's already hiding income to that extent, you can probably count on collecting child support being a challenge. It might be wise to look into what the maintenance enforcement program for Ontario can do. You'll need an order to be in place before they can do anything, but they'd probably be the next step after that. It sounds like wage garnishment wouldn't be very helpful, but there's a thing called federal interception, so any money that the government owes him (tax returns/GST cheques) would go to you through the enforcement program. Start collecting information... even things like the make/model of his vehicle and his license plate number could be helpful. Sometimes they put an attachment on things like cars, so he wouldn't be able to sell it without their knowledge. They might not be able to collect support, but at least they have a lot more tools available to them.

[spinknottle]

Get in touch with the Family Responsibility Office (FRO) , they are the middle man in Ontario when it comes to child support.  We don't use them (you can opt out) but if there are difficulties between the 2 parties, FRO is the way to go.

http://www.accesson.ca/en/mcss/programs/familyResponsibility/index.aspx

Child support in ontario is based on the non custodial parents income only -- unless the NCP makes a claim of undue hardship, which is difficult to prove and win.

Day care falls under "section 7 expenses".  These are not automatically split 50/50.  They are proportional to both incomes.  Section 7 expenses also cover extra curricular activities and a few other things.  It does not cover thing slike snowsuits, winterboots, etc.

"http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/pub/guide/step7-etap7.html

Step 7: dealing with special expenses

The amounts in the tables are a starting point. In many cases, children may have special expenses.

The guidelines define special expenses as expenses that are:

• necessary because they are in a child's best interests, and
• reasonable in relation to the means of the parents and of the child and consistent with the family's spending patterns prior to the separation.

You and the other parent may agree on how to divide payment for special expenses and may agree that an amount should be added to the basic child support amount in the table. In your agreement you can even list special expenses that you expect to incur years later. For example, you may wish to arrange for paying uninsured dental expenses, day care and contributions towards university tuition.

You can consider special expenses when you set child support amounts in sole custody or split custody arrangements.

Special expenses are:

• child-care expenses that a parent with whom the child lives incurs as a result of the parent's job, illness, disability or educational requirements for employment,
• the portion of a parent's medical and dental insurance premiums that provides coverage for the child,
• the child's health-care needs over and above that covered by insurance (for example, orthodontics, counselling, medication, eye care and other items) that exceed $100 per year,
• the child's extraordinary expenses for extracurricular activities,
• the child's extraordinary expenses for primary and secondary education or other educational programs, and,
• the child's expenses for post-secondary education.

The term extraordinary expenses means:

• expenses that are higher than those that the parent requesting an amount for the extraordinary expenses can reasonably cover, in light of that parent's income (including the child support amount), or
• expenses that aren't higher than those that the parent requesting an amount for the extraordinary expenses can reasonably cover, but that are extraordinary taking into account:
  • the income (including child support) of that parent,
  • the nature and number of the programs and extracurricular activities,
  • any special needs and talents of the child,
  • the overall cost of the programs and activities, and
  • any other similar factor that is relevant.

You and the other parent are free to decide if a special expense is reasonable and necessary and how much each of you will contribute to them. As a general rule, you will share in the special expense in proportion to your incomes, but you may agree to any other arrangement. Worksheet 2 at the back of this booklet can help you calculate special expenses.

If your Ex is working under the table, it will be difficult to get a decent support order.  From what I understand, you have the burden of proof.  You have to show that he makes more then he actually does.

http://www.attorneygeneral.jus.gov.on.ca/english/family/divorce/support/

I hope that helps a bit :)

[nutritionistmom]

You still need a court order before FRO will intervene. You can go down to family court and file one yourself, you don't need a lawyer for that. In our case, daycare is considered an "extraordinary expense" separate from CS. A judge would have to enforce payment though, FRO only handles CS.

[aricha]

I'm not in Canada, but I know that when we wanted to stay outside of court but still have a fair child support amount agreed to, we used the online calculator and the legal code to show what child support should be. Basically we said "this is what it would be if we do this through the child support office. Let's agree on something similar, based on the law, so we don't have to go that route." It worked really well for us, even in a pretty contentious relationship. 

[vivvysue]

spinknottle pretty much laid it out as it is, there are provincial and fedreal guidelines and your ex will have to produce the past three years tax returns and proof of his income now. if the court feels that he is not earning what he should be, or is hiding income/working for less than he could be to reducehis payments etc then they will impute the amount that he is capable of earning, not what he says he earns.

as for the extra-ordinary expenses, those are things like extra-curricular activities and programs they are in. day care is usually separate, but often included in the extra-ordinary expenses part of an order. i am in bc and i believe that our laws are very similar to ontario's. they want the households to be similar or almost the same in income and lifestyle proportionally the same for the kids at both homes.

you need to file to vary your order, relatively simple if it is not a part of your divorce proceedings. if it isnt then you file in provincial court, where it is free to file, although there are costs incurred with affidavits being witnessed etc, but if it is part of your divorce then it is in Supreme court and that means that there is a fee to file and for nearly everything else to do with having an order changed. it is a bit of a nightmare, i wont lie to you.

most lawyers are good and keep children/custody etc out of the divorce papers so that in future if things need changing it is inexpensive and easier to tackle. if your lawyer didntdo this then you are stuck with filing in supreme court.

good luck to you, it sounds as though your case is pretty open and shut as far as proving that you have the children more than half the time, you should easily have no trouble having the order for support changed as well as primary residence being returned to you as opposed to shared.

hth~ vs