Child Support Terms in a Separation Agreement: Guidelines and Section 7 Costs

If you are drafting child support terms yourself or reviewing a draft, you need to know three things: how the basic amount is set, how extra costs like child care and activities are handled, and how the numbers will be updated as incomes change. Loose wording in any of these areas is a common cause of later disputes.

This article explains how those pieces fit together in a separation agreement. It draws on the federal Child Support Guidelines and Ontario drafting guidance. It is general information only, and a lawyer can confirm how the rules apply to your family.

Starting with the guidelines

Under the Divorce Act, a court can order a spouse to pay child support and must make the order in accordance with the applicable guidelines. Separation agreements are usually drafted to line up with those guidelines. How the basic guideline amount is worked out in your case depends on your situation, so it is worth confirming with a lawyer. Look up the current figure for your incomes rather than relying on a number you have heard, and ask a lawyer to confirm which table applies in your case.

Income is generally determined using sources shown on the T1 General tax return. A court may impute income to a spouse as it considers appropriate in the circumstances, which can come up if someone is under-employed or has unreported income. Your agreement should state the income figure that the amount is based on and the year it comes from.

Shared parenting time and unusual situations

When each spouse has not less than 40% of parenting time over a year, the table amounts are not applied automatically. It is wise to record the parenting schedule in the agreement alongside the support terms. The Divorce Act allows parenting time to be allocated by a schedule.

The guidelines also allow a different amount if a spouse or child would otherwise suffer undue hardship. If you think either rule applies to you, tell your lawyer early, because it changes the calculation.

Special and extraordinary expenses

On top of the table amount, certain extra costs can be added. The guidelines list these:

• Child care expenses tied to employment, illness, disability or education.
• The child's portion of medical and dental insurance premiums.
• Health-related expenses that exceed insurance reimbursement by at least $100 annually.
• Extraordinary primary or secondary school expenses.
• Post-secondary education expenses.
• Extraordinary extracurricular expenses.

The guiding principle is that these expenses are shared by the spouses in proportion to their respective incomes. In setting an expense, any subsidies, benefits, and income tax deductions or credits relating to it must be taken into account. So the figure you write down should usually be the net cost, not the sticker price.

Wording matters. Ontario drafting guidance says to set special expenses either as a fixed amount, or as expenses the recipient claims on a sworn statement of arrears. It says to use the word "pay" rather than "share", and that the Family Responsibility Office may be unable to enforce special expenses not set out this way. A clause that says only "the parties will share daycare costs" can leave you with no practical way to collect.

Yearly income exchange and changes

Incomes change, so most agreements include a yearly income exchange. On written request, a spouse must provide updated income documents, not more than once a year after an order is made. Ontario guidance gives an example requiring both parties to send updated income disclosure within 30 days of the order's anniversary. You can use similar wording, with a clear date, a list of documents (such as tax returns and notices of assessment) and a deadline.

If you want support to change when incomes change, the agreement should say that the parties will exchange income information and then agree on a new fixed amount, rather than saying the amount automatically changes.

Enforcement and what to do next

A separation agreement is one of five kinds of domestic contract. The Family Responsibility Office enforces it only if it is registered: you file it with the Ontario Court of Justice or the Superior Court of Justice using form 26B, then send the Family Responsibility Office the contract, the court-signed form 26B and a completed registration package. Only a court can change a support order or domestic contract. To change a contract, the parties negotiate a new one and file it using form 26B, since the Family Responsibility Office cannot change the terms.

• Gather the last three years of personal income tax returns for both parents. Anyone applying for child support in court must include them.
• Write out the parenting schedule and note whether either parent has at least 40% of the time.
• List each child-related expense, its cost, and any subsidy or tax credit that reduces it.
• Draft special expense terms as a fixed amount or a sworn statement of arrears process, using "pay".
• Add a yearly income exchange clause with a clear date and deadline.
• Prepare your financial statement. Form 13 is for support-only cases and Form 13.1 is for cases involving property or debts.
• Have a lawyer review the agreement and discuss registering it with the court.

Frequently asked questions