Does Child Support Affect Child Custody or Access?

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 from the parent with whom the children primarily reside. It costs a lot of money to raise children. They have ongoing 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 online tools to figure out your base child support obligation.

When 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.

Child Support and Shared Parenting

Under section 9 of the Child Support Guidelineschild 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-ContinoTo 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 their 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 a 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 sincere interest in being very involved in the children’s lives and protecting their interests, 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 considerations regarding child support in shared parenting situations. 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 of 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 the parent pays are much more than the decrease in child 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 of 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 for 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.)

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. 

John Schuman Guide to the Basics of Ontario Family Law book cover

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

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