Frequently Asked Questions about Child Custody and Support

THe Law OFFICES OF JENNIFER E. JOLLY
​FAMILY LAW & ESTATE LITIGATION 
​

*The information provided below does not constitute legal advice and is only applicable to situations

governed by the law of Ontario. You must contact a lawyer for advice relevant to your circumstances.

How is custody of the children determined?

1. If the parents agree, the Courts will make an order respecting their wishes.
   
   
2. If not, the Courts will decide custody based on what is perceived to be in the “best interests” of the children.
   
   
3. There is no firm definition of “best interests”, but in applying this test, a Court  will look to the situation that existed prior to the separation, and seek to continue the role of the children’s primary caregiver. It is therefore important that a parent remain as involved as possible in their children’s lives immediately after a separation.
   
   
4. Also, an assessment of the children and parents may be conducted by a psychologist or social worker, who will prepare a report to assist the Court in determining who should have custody and whether or not it should be shared. 
   
   

Should a spouse leave the matrimonial home?

1. Neither spouse should leave the matrimonial home without first obtaining legal advice.
   
   
2. Without the consent of the other parent or a Court Order, a spouse will not be permitted to leave the home with the children.
   
   
3. If a spouse leaves the home without the children, he or she may be prejudicing their right to obtain custody of the children. Also, it may be difficult to re-gain access to the home later on to retrieve personal belongings.
   
   
4. It is important to know that unless there is a Court Order or an agreement that provides otherwise, both spouses have a right, under the law of Ontario, to live in the matrimonial home, even if one of them is not a registered ow ner of the home.
   

Who is required to pay child support? 

1. If the children reside with one parent the majority of time,the other parent will be required to pay that spouse child support.
   
   
2. Even if the children reside with both spouses, child support may still be payable if one spouse’s income is greater than the other's, although the amount of child support will be at a reduced level.
   
   

How is child support determined?

1. Child support is determined pursuant to the Child Support Guidelines,which provides a table indicating the amount of support payable based on the number of children being supported and the payor’s income
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2. As there are other factors that may affect the amount of child support payable, individual advice is needed in each case.
   
   

Is child support limited to the amount in the Child Support Guidelines? 

1. Not completely. The Child Support Guidelines also require spouses to share in proportion to their income, special and extraordinary expenses that they incur on behalf of a child, commonly called s.7 expenses after the section of the Guidelines that refers to them.
   

What qualifies as extraordinary expenses?

1. Extraordinary or section 7 expenses are child care expenses necessary to pursue employment, the children’s health related expenses and extracurricular activities(if extraordinary, considering the talent of the child, the cost of the program and the amount of the expense considering the spouses’ incomes and the amount of child support being paid). 
   
   

What about university tuition and expenses?

1. The Courts have determined that tuition and living expenses while attending post-secondary education are an extraordinary expense for which both parents are responsible, in proportion to their respective incomes.
   
   

2. The financial contributions a child can make towards his or her university or college education (in terms of scholarships, bursaries, trust funds, income earned and student loans) will also be considered, with the remaining costs being divided between the parents on a pro rata basis, according to their incomes.
   
   

3. In addition to sharing a child’s university expenses, the child support payor may also have to continue monthly child support payments to the other spouse. The amount of monthly support may be reduced, however, depending on where the child is living, the child’s ability to contribute to his or her own support, and the type of university expense being shared.
   

Will child or spousal support vary over time?

1. The amount of child support paid is directly tied to your income and the children’s residence. The amount of child support is adjusted yearly.
   
   

2. Both payor and recipient will be expected to disclose their annual income each year and the amount of child support will vary according to the Child Support Guidelines.If the payor’s income decreases, child support will normallyd ecrease. If the payor’s income increases, child suppor twill increase as well.