What is child support?
When parents separate, both parents are required to help pay for the daily needs of the children. Child support is the amount a parent pays to the other parent for the financial support of a child under a court order or agreement. Child support is a right of the child; it is not a punishment or reward for the behaviour of the parents. The goal of child support is to make sure that both parents contribute to the financial support of their children.
The Court can make a child support order under the federal Divorce Act or the provincial Family Law Act.
Who has to pay child support?
Biological and adoptive parents have a legal duty to support their children, even if they do not see or take care of the children. It does not matter whether the parents were married or for how long the relationship lasted. A common law partner, or spouse, or other person who is not the biological parent of a child might also be required to pay child support.
It is not possible to avoid paying child support by not having a relationship with the other parent, or by not having contact with the children.
Do we have to go to Court to Decide Child Support Issues?
You do not need to go to Court to decide child support issues. It is strongly recommended that parents try to resolve these issues outside of the Court. In fact, legislation may specifically impose a duty on the parties to attempt to resolve the dispute outside of the Court (see, for example, s. 7.3 of the Divorce Act).
Child support issues can be decided between the parents of the child, if the parties agree. It is a very good idea to put any parenting arrangement you come to into writing (such as a separation agreement) and have it signed by both parties in the presence of an official witness. You can then file a separation agreement with the Court so that it becomes enforceable as an Order of the Court (see s. 65(5) of the Family Law Act).
How can Family Justice Service help?
If parents cannot reach an agreement themselves but wish to remain out of Court, they may want to consider contacting Family Justice Services (“FJS”). FJS can, through mediation, assist parents in reaching an agreement in relation to parenting and child support. They can also assist you in putting the agreement into writing.
There are two ways to get assistance from FJS. Parents can apply directly to FJS for service if they both consent to the process. Alternatively, if one of the parents files an Originating Application with the Court that raises a child support issue, the Court will automatically forward the parties to FJS to see if it can assist the parties in coming to a resolution.
FJS will assess your needs and offer parent information programs, counselling (when deemed appropriate), and dispute resolution options/mediation, free of charge. Attendance at the Parent Information Sessions is mandatory and parties are expected to take part in mediation.
FJS does not provide legal advice and it is recommended that you obtain legal advice even if you can reach an agreement.
If parents are still unable to come to a decision, the issue may have to be resolved in Court.
Which Court Will Decide My Child Support Application?
Only the Supreme Court can deal with applications for child support orders issued as part of, or after, a divorce. If your application for a child support order is part of an application for a divorce you should apply to the Family Division of the Supreme Court if you are in one of the judicial areas or the expanded service area described here. Otherwise, you should apply to the General Division of the Supreme Court.
If you are applying for a child support order under the Family Law Act, you may be able to apply to the Supreme Court or the Provincial Court, depending upon your circumstances:
- If you live in a “judicial area” where the Supreme Court of Newfoundland and Labrador Family Division operates exclusively (see the description here), you must file your application with that Court.
- If you live in an “expanded service area” (see the description here), you have the option of filing your application with the Supreme Court of Newfoundland and Labrador Family Division or with the Provincial Court.
- In all other areas of the Province (including Labrador), your application may be filed in either the Provincial Court or the General Division of the Supreme Court.
It is strongly recommended to speak with a lawyer if you are uncertain which Court should be handling your case.
Filing documents in the wrong Court can lead to significant delays.
How is Child Support calculated?
Child support amounts are based on a set of rules called ‘child support guidelines’. The guidelines are based on a number of factors, including the number of children, the parenting arrangement, and the income of the paying parent (income usually found on Line 150 of your Income Tax Return).
There are Federal and Provincial Guidelines. The amounts of child support are the same in each set of Guidelines.
Federal Child Support Guidelines apply if:
- The parents are married and applying for divorce;
- The parents are already divorced
- Read the Federal Child Support Guidelines
Provincial Child Support Guidelines apply if:
- The parents have never been married;
- The parents are separated or planning to separate, but have decided not to divorce.
- Read the Provincial Child Support Guidelines Regulations
The Guidelines provide that the amount of child support consists of a “table” amount plus the parent’s share of the child’s special expenses. The table amount is taken directly from the schedule to the regulations.
A child’s special expenses include:
- Child care expenses
- Medical or dental premiums for the children
- Medical expenses
- Post-secondary education expenses
- Extracurricular activities
- Primary or secondary expenses that meet the needs of the child, such as tutoring expenses.
Special expenses are usually shared proportionately to the parents’ respective incomes. For example, if one parent makes $40,000 and the other parent makes $40,000, the parents will split the cost 50/50. However, parents can make a different agreement.
Note that all special expenses must be reasonable and necessary. What is reasonable any necessary may vary from family to family and from child to child.
NOTE: The amount of child support ordered may be different from the Guidelines if the parent or child is experiencing undue hardship. You should speak to a lawyer if you think you have special circumstances that impact the amount of child support required.
How do parenting arrangements affect child support?
Where the child is with one parent for 60% of the time or more, that parent is entitled to receive child support from the other parent. Where both parents have the child for at least 40% of the time, this will affect the calculation of child support. Where there is more than one child of the relationship and one or more children live with each parent more than 60% of the time, the calculation may also be affected.
How long is Child Support paid?
Child support is typically payable until the age of majority, which is 19 years of age in Newfoundland and Labrador.
Support may be payable beyond this age if the children continue to be dependent on the parents; reasons for dependency might include that the child is attending post-secondary school (university or college) or that the child is physically or mentally disabled.
Automatic Recalculation of Child Support
A child support order may permit the automatic recalculation of child support on an annual basis. The Recalculation Office will notify the parties of any recalculation based on any change of income for the payor which results in a $5.00 (plus or minus) difference in child support payments.