Some spouses think that it can be a good idea to quit their jobs, immediately before or after separation to get a support order in Family Court that is more to their liking. This strategy frequently backfires. The explanation of spousal support and child support that follows shows why.
Spousal Support (Alimony)
Spousal support is one of those complicated areas of law. In addition, it is ultimately almost entirely up to the discretion of the judge hearing the case. But, here is a summary of important things to consider when a spouse quits a job or reduces hours of work shortly before separation.
30 - Entitlement to Spousal Support
First, just because two people were married (or lived together for more than
three years, or had a child) does not mean that a spouse is entitled to spousal
support. Many people (and less experienced lawyers) overlook the
entitlement question. However, if there is no entitlement there is no
spousal support. The on-line spousal support calculations assume entitlement,
they do not show it - a calculation showing a value for spousal support does
not mean there is entitlement. This podcast
provides a more complete explanation of spousal support entitlement.
However, to over-simplify, if a spouse has not suffered economic disadvantage
as a result of the marriage or childcare responsibilities, has not become
accustomed to a standard of living that is impossible to maintain on his/her
income alone or has other financial needs, or has not provided services to the
other spouse or children for which she has not received compensation or
sufficient other benefits, then that spouse may not be entitled to support.
There are other articles on this wbsite that explain spousal
support entitlement in more detail.
Second, once a spouse has established entitlement there are questions both
about "how much" and "how long." The Spousal
Support Advisory Guidelines gives some guidance on this. These
are the calculations you see on on-line calculators. However, there are
are almost a hundred pages of rules about how to apply and interpret those
calculations and how to determine where support should be in the range of
values produced by the calculations. The on-line calculators do not explain those rules. You either have to read the text of the Spousal Support Advisory Guidlines (linked above), which is designed for lawyers and judges to read, or consult a lawyer about your case.
Third, spousal support is not just based on how much a spouse makes:
- Spousal Support is also based on how much a spouse could make. A judge considering a spousal support case will use a "full-time income" for a person who could be working full time.
- Spousal support is considers what contributions the spouse made to the marriage and children and what sacrifices the spouse made. It is not just important what a spouse makes, but what a spouse could have made if the relationship had not happened.
- Spousal support can be paid either periodically (usually monthly) or a lump sum. Where there is entitlement to spousal support, but the amount is not too high, spouses often prefer the lump sum so that there are no further payments and what happens to either spouse in the future does affect how much spousal support is paid or received. But where spousal support is to continue for a long time, or in a large amount, monthly payments may be more appropriate. There are also important tax considerations for each type of payment, which are described below.
There may also be some additional considerations that apply in the specific circumstances of a particular case. For more on that, watch this video on spousal support, but it is almost certainly better to see an excellent and knowledgeable family law lawyer with experiences in spousal support cases to determine how spousal support works in your particular circumstances.
The decision by a parent to quit a job cab also impact child support, but may not.
Child Support
Child support is a little easier. When a child lives primarily with one
parent, the other parent pays child support. The Child
Support Guideline Tables give a precise number for child support that
applies in most situations. It gets more complicated in cases of split or
shared custody, as described in this
podcast or on this page.
In addition, parents may have to contribute tospecial
and extraordinary expenses on top of child support. But, it is
important to remember that your spouse's income for child support is the total
of all income, so both employment and spousal support count.
This video
on child support covers many of the important things you need to know.
Where there is no spousal support, or not much. that does not mean a parent will be let off child support. Section 19(1)(a) of the Child Support Guidelines allows a judge to “impute” income to a parent who is not working as much as he or she could be. What that means is that a judge can order that a parent pay child support based on what that parent could be making rather than what the parent is actually making. Judges do not like parents who quit their jobs to avod supporting their kids. In those cases, judges figure out what the maximum amount the parent could be making and base support on that. This is where a lot of parents get into torubel and fall behind because the order for child support is based on a higher income than the parent actually earns. It is never worth it to quit a job to get out of child support becasue of the judge orders full support based on a higher income, the parent can end up in jail when he or she fails to pay.
It is also important to remember that spousal support is tax-deductible to the
payer and taxable to the recipient, unless it is paid as a lump sum.
Child support is not tax deductible or taxable.
You can get a lot more information about spousal support, child support,
and all the law involved (as well as information on most other Ontario Family
Law issues) by downloading this $9.99 e-book for Kindle, Kobo,
or iPad/iPhone/Mac or
ordering the
paperback version. You can learn a more about the family court
process in general by watching
this video or listening
to these podcasts (iTunes
version here). But,
to makes sure you are doing the right thing, and the support amount is right,
it s always best to speak with a good family law lawyer.
To discuss your case with Certified Specialist in Family Law, John Schuman, who is an expert in child support issues, call 416-446-5869, email him, or use the form below. We answer all inquiries promptly.
If you found this page helpful, please feel free to share it on your social network using the buttons below, or comment on it using the form below.
