Family Law Blog

Does Child Support Affect Child Custody or Access?

child in shared custody receiving shared child support

Every family law professional, and every family court judge, will tell you that child custody and access are completely separate issues from child support. How child support is determined is completely different from how judges decide who gets custody.  However, there are at least two ways in which child support can influence parenting issues in family court cases:

1.  Failing to pay appropriate child support immediately gives the impression that a parent does not care about the child.  That can affect how a Family Court Judge or Family Arbitrator views that parent’s fitness as a parent.

2.  Shared Custody/Shared Parenting changes the way Child Support is Calculated. Sometimes people view shared custody as much as a financial arrangement as a parenting arrangement in the children’s best interests. However, things can work out differently than they expect.

The Importance of Paying Child Support Right From Separation

Child support is the right of the child.  The right of children to share in their parents’ wealth exists from the moment of separation.  It is a big mistake for a parent to withhold child support to the parent with whom the children primarily reside.  It costs a lot of money to raise children.  They have on-going needs.  When one parent leaves the children with the other parent, that parent must recognize that the children’s needs continue.  That means paying appropriate child support right from separation.  You can use on-line tools to figure out your base child support obligation.

10 - Child Support - Who Pays and How Much?

When a parents do not recognize that their children still have financial needs after separation, by immediately paying appropriate child support, Family Court Judges interpret that as a parent not caring about the children’s needs.  Judges view parents who do not care, or understand, their children’s needs as poor parents - parents who cannot make good decisions for their kids, and therefore should not have custody.  That leads Family Court Judges to believe that parents who do not immediately start paying appropriate child support as parents who should not have custody.

That, of course, can be an incorrect assumption by the Family Court Judge.  But a parent who starts off giving the Family Court a bad impression of him or her as a parent will have a much harder time in their case.  That parent has barriers to overcome to get the parenting arrangements that he or she wants - barriers that he or she would not have if she or he had shown devotion to the kids right from the start by paying child support.

You can make sure you are doing the right things after separation by speaking to a top family law lawyer, and by watching the video below that sets out some of the other mistakes that you need to avoid:

Child Support and Shared Parenting

Under section 9 of the Child Support Guidelines, child support changes when the children spend close to an equal amount of time with each parent.  The magic number is 40%.  When a child spends 40% of his or her time with a parent, that parent no longer has to pay the table amount of child support, but pays another amount that reflects a fair sharing of the costs of raising that child. The principles for how parents should financially support their children in shared parenting situations were set out by the Supreme Court of Canada in the case of Contino v. Leonelli-Contino. To summarize, when children share their time close to equally between parents, the starting point is that the parents each pay the table child support to the other. However, the way that works out, is that the parent with the higher income pays his or her table amount of child support minus the other parent’s child support obligation. 

For some parents, they want to have the children for forty percent or more of the time so that they can get a “break” in child support.  Several family court judges are suspicious when a parent seeks to move to shared parenting because they want the break in child support.  if the judge believes that a parent is more interested in the break in child support, than in the child’s best interests, that judge will not order shared parenting.  If a parent wants shared parenting out of a since interest in being very involved in the children’s lives and protecting their interest, that parent may actually want to offer to pay full child support so that the judge has no doubt about that parent’s motives and feels safe ordering shared parenting.  In addition, a parent who wants a shared parenting regime should watch the video below, which sets out when shared parenting, and other parenting arraignments, work best for the children, to make sure that the plan is best for the children and the judge will see that too:

There are some additional consideration regarding child support in shared parenting situation.  First, in Contino, the Supreme Court said that the ‘set off” of child support was only the starting point.  If that approach did not result in the parents sharing the costs of raising the children in proportion to their respective incomes, then the Family Court should make a different child support order that does.  For example, a Family Court Judge will not order “set-off” or reduced child support, where one parent continues to bear the bulk of the cost for raising the children.  Set-off only works where both parents are not only sharing parenting time, but also sharing the costs of raising the children.

A second consideration regarding child support in shared parenting situations is that it does not always save money.  Kids can be expensive.  When the children are being raised in two homes instead of one, the children’s expenses are often not divided in two, but multiplied by two.  Each child may need two beds, two sets of clothes, two TVs, two gaming systems, two bicycles, two sets of toys, and the list goes on.  In shared parenting, a parent may find that child support goes down, but the extra expenses that parent pays are much more than the decrease in chid support.  Many parents in shared parenting think it would be “cheaper” to have the children live with the other parent and just pay child support, but cannot do that because of how involved they are with their children.

A third consideration is that in several shared parenting scenarios the support paying parent may pay more support than when the children have one primary residence.  This is particularly true when one parent makes a lot more than the other.  In that situation, the “set off” of support may not result in much of a decrease in child support.  However, because to the adjustments to tax benefits and deductions, and other cash flow considerations, when the Spousal Support Advisory Guidelines are applied, the decrease in child support is more than made up fore by an increase in spousal support - and spousal support may not necessarily end when a child reaches 18 or finishes school as is the case for child support.  It is important to have a good family lawyer do the support calculations for you to figure out the most prudent way to arrange support in light of your family’s circumstances.

Child Support and Child Custody Are Still Separate Issues

Despite the above, child support and child custody are not legally linked.  So, except for the circumstances described above, parents should not try to link them.  For example, a parent cannot deny access because the other parent is not paying child support. Similarly, a parent is not “entitled” to see the children just because he or she is paying child support.  How much time a parent spends with the children and when is determined based on what is in the child’s best interests, not based on how much child support that parent is paying,  And telling the children how much support you are paying is never a good idea.  That is involving the children in adult issues, which can only be harmful (and judges do not let parents see children if it is going to cause harm.)

Wealthy parent with lots to spend on the kids

Judges will not order that the wealthier parent get the children because he or she will be able to give the children a better lifestyle.  Child support is supposed to permit children to share in the wealth of both their parents.  Saying the other parent is “too poor” to raise the children properly is a pretty good way to anger a judge and lose your case.

Finally, paying child support does not mean that a parent gets to dictate how the other parent raises the children, or even how the receiving parent uses the child support.  Unless a court or arbitrator decides otherwise, what a parent does during his or her “parenting time” is not the business of the other parent.  After separation, parents do not get to control how each other uses their money, including child support.  If a parent is using child support money to buy drugs or alcohol, or gambling it away, then the support paying parent may have a case to say that the receiving parent is a bad parent because of addiction issues.   But, that determination is based on each parent’s parenting ability and the best interests of the children - not on a consideration of child support. 

There are a lot of things to consider in each of child support and child custody.  There are more things to consider, and things get more complicated, when the two issues interact.  In addition, a lot can change depending on the specifics of your situation.  In these situations, you really need to set up a consultation with a good family lawyer to learn your rights and obligations in your specific circumstances.  Make an appointment to meet with Certified Specialist in Family Law, John Schuman, by calling 416-446-4036, emailing him, or using the contact form below.  We respond to all inquiries promptly. 

Guide to the Basics of Ontario Family Law, 3rd Edition

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You can also learn a lot more about child support, child custody, and how they interact, as well as getting more information on most other family law issues, a description of Family Court and the alternatives to court, and tips on how to avoid making crucial family law mistakes, by picking up a copy of this book on the basics of Ontario Family Law. You can get the paperback from Amazon, or you can immediately download the $9.99 Kindle ebook or iBook for your iPad or iPhone.

Please feel free to comment on this page using the form below.  Also, if you found this page helpful, please share it on your social network using the buttons at the bottom to the page. You may also want to check out the other pages in this site, and find topics that interest you by using the search box up on the right.

Does My Spouse Still Have to Share the House He Inherited?


The residence (or residences) you lived in on the date of separation is (are) your matrimonial home(s).  Matrimonial homes can cause people a lot of difficulties on separation. If one spouse is an owner of the matrimonial home, he or she MUST include that interest in Net Family Property - even if that interest would otherwise have been excluded as an inheritance.  Unless there is a marriage contract, matrimonial homes are always included in Net Family Property.  Net Family Property is what you divide when you separate.  Listen to this podcast for more on how property is divided in divorce.  How your property may be divided depends on what else you own, but, unless you agree not to apply the property equalization provisions of the Family Law Act, your has to share the value of his interest in the house  with you.  (Other people who are not your spouse do not have to share their interests in the house with you, only married spouses have to share their interests in property under the Family Law Act.)

A common property that people inherit is a family cottage - or they inherit the cottage along with other family members. However, if a husband and wife treated the cottage like a “family home”, then the inheriting spouse’s interest in the cottage has to be shared in a divorce.  Spouses can have more than one matrimonial home.  Not only do spouses have to share a cottage that is a matrimonial home, but both spouse have a right, under the Family Law Act, to continue to use the cottage after separation. To protect a family cottage from being a matrimonial home, speak to a good family law lawyer.

For more about how matrimonial homes are always included in property to be divided, read this page and watch this video:

While matrimonial homes are always shared in a divorce (unless there is a marriage contract), other inheritances are not included in the property that spouses share by value.  However, it can be possible to lose that protected status for an inheritance.  Speak to a family lawyer whenever you inherit anything of significance or importance. 

In any separation or divorce, there are many common mistakes that people make when they do not speak to a lawyer.  You should speak to a lawyer so you know your rights and how the law applies to your situation.  Otherwise, your ex may trick you into taking less than you deserve.  Pick up a copy of the Guide to the Basics of Ontario Family Law, which is an easy-to-understand book on Ontario Family Law that explains property division, matrimonial homes, child support, alimony and most other family law issues so that you know where you stand.  You can get the paperback from Amazon, or you can immediately download the $9.99 Kindle ebook or iBook for your iPad or iPhone.

The Guide to the Basics of Ontario Family Law is available on the iBookstore for iPad, iPhone and Mac
Guide to the Basics of Ontario Family Law Available on Kindle

If you have any questions or concerns about your property in separation, or if you have any other Family Law questions that you need answers, contact Certified Specialist in Family Law, John Schuman, by calling 416-446-4036, emailing him, or filling out the form below. You can also use the form below to comment on this page.

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