Family Law Blog

My Ex Spouse Is Not Paying Our Children’s Expenses, What Do I Do?

childcare expenses

This is a more complicated question than in may at first seem.  There are several things you have to consider. The first is whether the expenses are ones that should be paid in addition to child support, which depends on several factors, such as the type of expense and the incomes of the parties.  The second is whether the amount of the contribution is specifically set out in an order or agreement, or whether it must be calculated each time.


What expenses do parent pay in addition to base child support?


There are two components of child support in Ontario and Canada.  The first component is the base or table amount.  That is the amount that is based only on income and the number of children.  To calculate support, you use the tables in the Child Support Guidelines.  Use this page to get the amount of child support  when children live primarily with one parent.  For more complicated situations, start by listening to this podcast or watching this video and read this page.


The second component to child support are Special and Extraordinary Expenses, which are also called Section Seven Expenses because the rules for these payments are set out in section 7 of the Child Support Guidelines.  And, it is also important to realize that special expenses are different from extraordinary expenses:


John's podcast photo

Special expenses are things like health care and dental expenses, child care and expenses related to special needs, they are almost always shared by parents.   They also include the cost of post-secondary (college or university) education, but who pays those education expenses can be complicated

11 - Child Support's Special and Extraordinary Expenses

Extraordinary expenses are expenses that are very large in light of the income of the child’s parents but benefit the child because of the child’s extraordinary talents or skills.   These are such things as rep hockey (but probably not house league hockey), swim team (but probably not swimming lessons) or competitive gymnastics (but probably not recreation gymnastics).  A support paying parent does not have to pay for every expenses over and above base child support.  The extraordinary expense must be disproportionately large such that they are too much to be covered by base child support. In addition, there must be a reason why the expense benefits the child.  While every child might want a pony, that does not make it a legitimate extraordinary expense unless the child is a particularly talented rider.  In addition, for the very rich that pony might be part of base child support, but for many other families, the pony may just be unaffordable and so will never be a part of child support.  These are all factors that play into whether parents share an expense in addition to base child support. 


In addition, to the above considerations, section 7(3) of the Child Support Guidelines says that parents only share the after-tax deduction, after subsidy, bursary, etc. cost.   The idea is that parents only share what they are out of pocket.  So,for things like child care, where there may be a significant tax credit, the full amount on the recipe may be much higher than the amount the parents have to share because of the cost of the expense may be significantly reduced by tax credits and subsidies. 


Finally, parents share qualifying special and extraordinary expenses in proportion to their incomes.  If one parent earns his or her income from self-employment or from a means other than salary, figuring out what that parents in come may be can be very complicated. 

The Guide to The Basics of Ontario Family Law


There is a lot to consider, so if special and extraordinary expenses are a concern for you, then you probably need to speak to a good family law / child support lawyer, or at least listen to this podcast, or get a copy of the book at the right to make sure the amount is right. 


Collecting and Enforcing Special and Extraordinary Expenses

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When parents separate, they usually agree, or judge orders, or an arbitrator awards, what special and extraordinary expenses the parents should share  and what proportion of the expenses each parent should pay.  But, there are a number of tricks to consider.

Guide to the Basics of Ontario Family Law Available on Kindle


First, some orders or agreements specify what expenses should be shared.  If the order or agreement specifies that only the listed expenses are shared, then the other parent may not have to contribute unless there is a new agreement or order requiring that.  For some expenses, like necessary medical expenses, it is almost certain that a judge will order the parents to share the expense.  In that case, there is no legal reason not to immediately pay the expense and avoid the trouble and cost of going for court.  For other expenses, whether the expense should be shared is more complicated and so it is a good idea to speak to a lawyer before paying an expense that is not part of an order or agreement (unless you want to share the expense).


Second, some orders and agreements specify a specific dollar amount that the child support paying parent must pay every month toward special and extraordinary expenses.  Other agreements state what percentage of the expense each parent will pay.   If you are worried about the other parent paying his or her share of special and extraordinary expenses, then you really want to have a specific dollar amount set in the agreement or order, even if it may occasionally be too low an amount.  This is because the Family Responsibility Office (FRO), will collect the other parent’s contribution to special and extraordinary expenses - but only if there is a specific dollar amount set out in the agreement or order.


Family Court Judge deciding what parents should pay toward special and extraordinary expenses

The FRO will not look at receipts and figure out what amount to collect based on the percentage in an agreement.  It will not figure out the correct contribution in any way.  It will only enforce the specific dollar amounts set out in the agreement. So, if the other parent is refusing to pay his or her share of a special or extraordinary expense, and there is no specific dollar amount set out for the FRO to collect, you will have to go back to court and have a judge set out what the other parent should be paying.  That is the case even if you have an order that sets the specific percentage that each parent pays and receipts that show the exact amount of the expenses.  It is usually possible to get a judge to do this on a motion, but it will likely require fine an updated financial statement, and may require a case conference in addition to the motion hearing.  So, it is often better to specify a specific dollar amount for each parent to pay toward special and extraordinary expenses, even if that amount is a little low, to avoid the cost of going back to court to have a judge to specify the amount that the FRO should collect.


Obviously, if there is no doubt that the other parent will always pay the proper amount of support, you will not need a judge to specify the specific dollar contribution to special and extraordinary expenses, because you will never have to ask the FRO to collect them.


For a helpful and informative discussion of child support enforcement, listen to this edition of Ward and Al Radio show.


The Guide to The Basics of Ontario Family Law

Special and extraordinary expenses can be a difficult, contentious and complicated matter to deal with.  Collecting them can also be complicated and difficult.  To ensure that both the contribution and collection of section seven expenses is correct, you really should speak to a good family lawyer about your specific situation.  Contact Certified Specialist in Family Law (including child support), Family and Divorce Lawyer, John Schuman, by calling 416-446-5847, or emailing him, or using the contact form below.  In addition to seeing a lawyer, for even more information on child support, get a copy of this $20-easy-to-understand book about Ontario Family Law. It can give you a lot of help with child support, most other family law matters, family court process, and all there alternatives to going to court. 


If you found this page helpful, please share it on your social network using the buttons at the bottom of the page.   You can comment on this page using the contact form below.


Can I Get Custody of My Niece Because Her Father is Abusive?

Niece who is being abused by parents

Ontario Law does allow you to seek custody of your nephew - especially in the circumstances where a child is being abused.  Doing that does allow you protect your niece and ensure that loving family members are the ones looking out for her.  However, if the abuse is putting the child at immediate risk of harm (or has caused the child to suffer harm already), then you should contact a Children’s Aid Society.  A Children’s Aid Society can intervene immediately if necessary.  Going to court in  custody case may take days, or weeks, and that could be too long if the child will be badly harmed before a judge can intervene.  Still, if the child will be safe for several days, then a custody proceeding may be in her best interest because the options for her care stay within the family.

Bringing a Custody Case

Section 21(1) of the Children's Law Reform Act allows the parents of a child or "any other person" to apply to court for an order respecting custody of or access to a child.  When a Family Court Judge decides a child custody case, that judge must consider several factors, which are explained on this webpage in this podcast.  How close the child is with you and her father, and her mother is one factor.  Another is the ability of each person to "act as a parent."  There are several other factors and if you are going to seek custody you should take the steps necessary to make as many of them in your favour as possible.  However, section 24(4) of the Children's Law Reform Act says a judge must consider any violence perpetrated by anyone seeking custody and that is big factor for judges.  In fact, section 21 of the Children’s Law Reform Act requires all the parties to a custody proceeding to file a Form 35.1 Affidavit, which require the party to reveal all past and pending criminal charges and any involvement in violence to which a child may have been exposed.  Proven substance abuse issues are also a really big concern for Family Court Judges.

The Family Court process that you may need to follow is described in this video and is set out in more detail in a series of podcast episodes that starts with this one.  Read this page to find out specifically what you have to do to get an emergency custody order. If you do not want a children’s aid society to become involved to protect your niece, then you will have to convince the presiding judge that the risk of harm constitutes and emergency - but no so big an emergency that the children’s aid society should step in. 

Ask to Care for Your Niece After the Children
’s Aid Society Has Intervened

If a children's aid society finds out that your brother has substance abuse issues and has been violent in the home, especially in front of a child, that agency will be very concerned about whether your niece is suffering emotional harm.  The agency may apprehend your niece and put her in foster care. If that happens, you should act very quickly to put forward a plan to care for your niece, rather than having her stay in foster care.  Section 51(3.1) of the Child and Family Services Act says that a Court must give priority to placement with family members over ordering that a child remain in foster care.  There is a really big advantage to you presenting that plan to the CAS and then to the court at the first hearing, which is 5 days after the CAS apprehends.  But, if the CAS gets involved, you will have absolutely no control over the process and the CAS may decide your niece should be adopted rather than returned to any family member.  So, it would be better to avoid the CAS becoming involved by seeking custody before that happens.


Next Steps

Obviously, the best way to ensure that you protect your niece and you are successful in your family court case is to get the help of a good family law lawyer who can present your case in a persuasive way, make sure that the judge hears how all (or at least most) of the factors that related to child custody support your case and makes sure you prove your case in accordance with the rules of evidence.  John Schuman is a Certified Specialist in Family Law who, in his many years of practice as a child custody lawyer in the Greater Toronto Area, has handled many difficult child custody cases.  He is known for his concern for children’s rights, and his sensible and effective approach to these cases.  In one particularly difficult child custody case, Justice Sherr noted, “Mr. Schuman’s conduct in this case is an example of what lawyers are supposed to do in difficult cases.”  To contact John Schuman, call 416-446-5847, email him, or use the form below.

You can learn a lot more about custody cases, family court, and how to succeed in your custody case (or other family law case) by getting a copy of this $20 easy-to-understand book on Ontario Family Law It also has many tips to get what you want, and avoid getting in trouble in child custody and access cases.

The Guide to The Basics of Ontario Family Law


If you found this page useful, please feel free to share it on your social network using the buttons at the bottom of the page.  We also welcome your comments on what you have read above.  Please use the form below to send in your comments. 

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Can You Deny Access Because the Other Parent is Not Paying Child Support?

child in child support and child access dispute

There are several factors that judges consider when deciding how much a parent should see a child.  Whether a parent is paying child support is NOT one of them. In fact, a parent denying access for anything other than safety concerns can get that parent into trouble with the court.   Child support and access are separate issues.

 

If you want to make sure a parent pays child support, the best thing to do is to negotiate an enforceable separation agreement and file it with the Court for enforcement or get that parent to agree to a court order for child support.  If that order sets out a specific monthly (weekly, bi-weekly or annual) amount then the Family Responsibility Office will collect the support.  However, an agreement that says the other parent will pay certain expenses in lieu of child support is not as good as an agreement (or court order) that says that parent will pay you a specified amount of money that covers those expenses because the Family Responsibility Office will only collect amounts of money that are clearly set out in a court order or separation agreement. When a parent does not pay the support that is set out in an order or agreement, the Family Responsibility Office can garnish that parent’s pay and bank accounts, take away his or her driver’s licence, or even put that parent in jail.

 

For a discussion of child support, and parents avoiding child support, listen to this episode of the Ward and Al Show.

 

For a more complete discussion of child support, listen to this podcast, or watch this video.

The Guide to The Basics of Ontario Family Law


This question shows how issues in Family Law can seem to intersect and be related.  Sometimes they are and sometimes they are not. Confusing what issues are related and what ones are not can get you into trouble.  If you want a resource that covers all the main topics of family law, and provides some advice as to how to succeed in getting what you want in or out of court, get a copy of this  $20 easy-to-understand book on Ontario Family Law.  

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Your best option, especially for tricky issues such as this one, is to speak to a good family lawyer who will give you advice specific to your specific circumstances and give you (or your girlfriend) a plan to solve your problems.  Contact Certified Specialist in Family Law, Toronto Divorce Lawyer, John Schuman, at 416-446-5080, or by email, or using the contact form below.

Guide to the Basics of Ontario Family Law Available on Kindle


Comment on this article using the form below.  And, share it on your social network using the buttons at the bottom of this page.  Sharing this article helps get this information to your friends, colleagues and acquaintances who need to know about what to do in this situation.


COMMENTS:

Bruce Eden - Independent Legal Services Professional

Contrary to what the courts in the US (and Canada) say, child support is linked to access. The US Supreme Court has ruled that a parents RIGHT to the care, custody and nurture of their children has a CORRESPONDING, RECIPROCAL duty of supporting the child(ren) financially and emotionally.


David Hooton - Father to two amazing girls

If you deny the children access to either parent then you are an abuser and the lowest form of humanity. This goes for either parent male or female or Judge.


Bruce Eden - Independent Legal Services Professional

Correct. It is emotional, psychological and physical child abuse. The emotional, psychological beat-down of the child results in physical stress on the child. Parental alienation is a form of child abuse combining all 3 types of child abuse.


Lillian LaRosa - Attorney at LaRosa/Toland Law Offices

While both parents have a duty to provide financial support, Massachusetts does not link the two issues of access and financial support and those who deny access may lose custody.


Bruce Eden - Independent Legal Services Professional

What happens if the one parent falls behind in child support and is in arrears, files for a custody modification or parenting time support, and the other parent then files for enforcement of child support with contempt? Does the person filing the enforcement, but denying access, lose custody? Because that's usually the defense. The parent denying access may have been doing it for a while, yet once the paying parent falls into arrears, usually for job loss or disability, he runs the threat of being deprived of his children AND his Liberties


Lillian LaRosa - Attorney at LaRosa/Toland Law Offices

I think the general public is becoming more aware of the need to file for Modification of Child Support in the event of job loss or disability if the unemployment or workers compensation benefit would support a reduction.


Bruce Eden - Independent Legal Services Professional

No. My question involves the fact that if the payor parent is in arrears (whether small or large) because of job loss or disability, the payee parent will try and use this as excuse to deny access of the child(ren) to the payor parent, saying if he isn't paying he's not going to see the children. When the payor parent goes in to enforce his parental rights, the other parent will file a motion to enforce the support and arrears, usually seeking a contempt charge. This is mixing the support and parenting time issues, but the payee parent, usually with custody or primary residential, never gets sanctioned for combining the issues


Padraig Cullinane - Independent Law Practice Professional

Well, access to children and payment should never be traded off one for the other, in time hopefully the access parent will realise the need to support his/her children. It's a difficult situitation, but saying no payment = no access will only make matters worse for the most part.


Barton Resnicoff -  Law Office of Barton R. Resnicoff

In NY, they are also separate issues and dealt with separately, with one exception. Children need a roof over their heads, clothing, food and other necessities. They also need a relationship with both parents. If the non custodial parent does want to pay child support, the Court system will set a child support amount and collect it or he/she will have significant enforcement problems. On the other hand, a custodial parent has an affirmative obligation to encourage a relationship with the other parent. Failure to do that could be basis for a change in custody or, in extreme cases, a reason to suspend support(the one exception).


Robin Yeamans - Law Office of Robin Yeamans

Under Calif law, they are separate, and she must allow visition. But she should get a support order and a wage assignment so his employer pays her directly.


Jerry Reiss - Actuary at EBC

Tradeoff what was done in the 70s in a number of states. Not sure if it was law but it sure was judges did then. There is no trade off in Florida since 1993 when I began doing expert witness work.


Joe Lewis - Founding partner, Port City Legal

Maine considers these separately, also.


Emily Gosnell - Independent Legal Services Professional and trial attorney in family, criminal, traffic matters, social security

All I can tell you is what the law is in NJ. We view child support and visitation as separate issues. Just because he isn't paying support absolutely does NOT authorize the client to deny visitation. Many of my clients have been outraged by my explanations, but our case law is clear. Indeed in a really bad case change of custody can result from visitation denials. I understand the custodial parent's frustration, but they have to comply or else disaster can result.


Tatiana Terekhova, Divorce Financial Analyst - President & Founder at FAIRSPLIT Inc., Milton, Ontario

Financial Professional at Peel Halton Collaborative Family Law Practice Group

Thank you for always choosing such hot topics.


Janneke LewisLawyer and human rights advocate at North Shore Law LLP, North Vancouver, British Columbia

There is no connection between child support and access here in BC - and there should be no connection. Each parent has an obligation to support their children. Get a court order for support and register the order with the Family Enforcement authority. Paying support is not a choice.



© John P. Schuman 2014