75/25 arrangement Is there child support?

N

Newfie76

New member
Hello all,

I and my ex currently have 50/50 shared custody. I pay her Child Support and offset what she owes me.

Come sometime this winter she will be moving to Southern USA leaving kids with me. After 6 months in USA she will return to Canada for 6 months, and wants the kids 50/50 during that time.

Over a 12 month period this equates to a 75/25% time with parents.

My question is: do I need to pay child support? And if so how, as in just the 6 months she is here or every month of the year?

also, if child support is due with a 25/75 arrangement… how is it to be calculated? I’m under a strong impression that at 25% time with children the parent is not entitled to CS… is this true? Especially if they leave the country for half the year.

thanks
 
I believe I understand your question but do not know the answer.

You want to know if Child Support is calculated yearly based on the time a child is with a parent yearly. The period of calculation is 12 months.
OR
If circumstances such as your ex moving a way for 6 months and not caring for the children for those 6 months makes the period of calculations every 6 months.

There must be caselaw on this.
 
Newfie76 said:
Hello all,
Click to expand...

My last piece of advice is not to advice from people admitting that they are only guessing.
Following bad advice when writing up motions or agreements simply leads to more bad feelings, fighting and problems, so say the lawyers that post here that make money off people making up their own rules.
 
Thanks everyone that have replied. I can’t find any case law on this and the advice from my lawyer is 25% over the year is well below the 40% rule. Federal guidelines don’t take into account a partial year. All calculations are based on a full 12 months. Thus no CS is owed. However, I know that this is an “industry” and lawyers make a living off of those easily sparked by emotion. Best advice… always double check your own lawyers advice.

Everything I can find on the subject is based on 40/60. However when reading through Canlii one can find a tonne of information where a father is less than 40% while the mother is well above 40%. In these cases, the father pays and there is no offset for the mother.

I proposed to pay 6 months offset. But maybe I’m a sucker. Probably a sucker… as I can’t find anywhere it’s the mother less than 40% and father above 40%.

thanks everyone
 
The challenge you'll have is that CS is based on current reality vs potential future scenario, ie: it would drop to 25% parenting time amnually * IF * the other parent leaves for 6 months. If they end up choosing not to, then you'll find yoruself in arrears.

Technically, you're not looking at 75/25, you're looking at current 50/50, and IF she moves, moves100/0, and support should reflect the current situation at the current time. When it's 50/50, you pay offset, when it's 100/0 then she pays you 100% support. It may work out roughly the same, but no court is going to reduce or change support based on her possibly leaving.

ideally, you come to an agreement between you that indicates what happens when it's 50/50 and what happens when it 100/0. If you can't, mediation may help.
 
Yes… I may have failed to mention that. We are working on the “what if”. So basically “What if” my ex moves and reduces her time to 25% (new house already purchased and ticket bought; but yes still has not happened yet…I get it), do I pay CS…at that current time? From everything I can find on Canlii and from legal advice… Those that fall below the 40% threshold do not receive CS. I’ve yet to find a case that states otherwise.

Regardless… I plan to propose I do pay CS for the 6 months she is here. I think it’s fair. Our system is NOT fair. It has bitten me a few times and has crossed the human rights line in several areas, not to mention our beloved charter. However, another wrong won’t make it right. If it helps the kids spend time with her I don’t mind paying her. It is for the kids not my ex.

I think I just proved another reason how the Divorce Industry is built on corruption and should be overhauled.
 
This has nothing to do with gender; not sure why you're wasting time with that. Child support uses guidelines and is case specific.

Cs is normally based on the year, but your case is unique with easy calculations at 100/0 and 50/50, 6 months each. Custody/access changes are a valid reason to update support, so child switching from you 100% to 50% and vice versa would signal a new calculation. No corruption, just simple math.
 
StillPaying said:
This has nothing to do with gender; not sure why you're wasting time with that. Child support uses guidelines….
Cs is normally based on the year, but your case is unique with easy calculations at 100/0 and 50/50, 6 months each. Custody/access changes are a valid reason to update support, so child switching from you 100% to 50% and vice versa would signal a new calculation. No corruption, just simple math.
Click to expand...

The poster is saying that is not how the law is written or implemented.
The poster is saying they will include language seeking to have it done in a way the laws are not written. Redoing Cs every 6 months would simply end up in a fight later.

The one thing I would also seek to include are clauses that avoid spousal support from being altered if something happens that results in the ex not receiving the child support.


I am assuming a lot about the situation with this next part:
to the op. Just because you pay the ex Cs and they “care” for the kids doesn’t mean they will be good parents but I see your point going they will be a good parent.

the human rights thing is a legit beef. Many inequalities have changed via law and many still remain in law. Things are getting better.
 
Not gender? Why would you say that and jump to the easy calculation of 6 months 100/0 and 6 months 50/50, when the tables (section 9) clearly indicates that calculations are conducted on a 1 year basis. There is no wording to indicate the other. And every single case on Canlii that relate to the 40% threshold (over a year might I add) have men that fall below the 40% pay while their ex that fall above pay nothing? Don’t open the male vs female argument… it’s just fact. No need to hide there. I’ve accepted it. Otherwise it costs you money, more money, that I worked for.

in all the cases I’ve read on canlii (32 cases reviewed so far) they all should have required both parents paying Child Support. But they don’t. Judges seem to force the parent (male parent in these cases) to pay when they fall below the 40% threshold over a 12 month period (not fractions of a year) and they seem to let the parent (female parent in these cases) with more time with the children (above the 12 month 40% threshold) to pay nothing. I don’t think that is a fair approach and thus I won’t be following it. Anyone know of a case where the judge ignored the 12 month calculation with the 40% threshold?

I was hoping someone could confirm this or not through known case law or prior experience… but it does not seem to be that common. Even on Canlii all of the scenarios involved the male working in remote dangerous areas for 3-6 weeks at a time, thus dropping the amount of time they will reasonably have with the children over the period of 12 months ( s.9 states 12 months calculation and judges do follow that).

Regardless, want to thank everyone for their advice. I’ve made my decision to ignore the 40% rule and the 12 month rule (with the latter clearly enforced by the courts might I add) and I will propose to my ex to calculate based on 6 months at 100/0 and 50/50. I think it’s fair even though it seems the court does not follow this. It’s just sad that all the fathers working remotely, risking their lives are forced to pay so much while risking so much. This 40% rule and 12 month calculation is NOT fair and “appears” to be applied with gender bias. Unless someone can link to a case where a female is below 40% and the male pays nothing. I hold hope but really doubt it.

If anyone does find a case or have personal experience that falls below the 40% threshold, please post. I’ll check back every blue moon. And there might be someone else that is looking for this same info.

Thanks again.
 
It's not easy, and could be really embarrassing, when you get mixed up on the irrelevant things. Stick to reasonableness and intent.

Cs is by the year to stop eow parents from requesting support during shared summers, or kids moving around on a whim each month. However, when situations call for different calculations such as university, it's not by year but by number of months at home and what the access schedule is during that time.

If the kids are with you 100%, you get full table support. If the kids moved to ex 100%, support would change. Going from zero access to shared 50% also warrants a new calculation.

There's nothing here that's corrupt or gender specific; although I do hear more girls go to university. But that just may be a crooked system.

Why complain and pay when you say you don't have to?
 
StillPaying said:
It's not easy, and could be really embarrassing, when you get mixed up on the irrelevant things. Stick to reasonableness and intent.
....Why complain and pay when you say you don't have to?
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Newfie76 behavior is principled and they are stating facts backed up by rulings in Canlii.
I find it refreshing that they are stating what those principals are and why it is a better way than the current ways.

I also find it wise.

2 things to add... make each party physically pay each other. Add into the agreement who gets to collect the tax credits. If you want to spilt them that is.
If the parties do not agree on who is collecting the tax credit and they both pay each other CS then the CRA won't allow anyone to collect.
 
Last edited:
It is never wise to try and mount your case based on gender bias. Judges hate this.

There is more to eligibility for claiming a child on your taxes than simply child support arrangements. This isn't a blanket statement that applies to every case where CS applies.
 
noteasy said:
2 things to add... make each party physically pay each other. Add into the agreement who gets to collect the tax credits. If you want to spilt them that is.
Click to expand...

You keep saying this in multiple threads, yet it's still wrong.

Paying a setoff amount doesn't matter with regards to child benefits. And they don't alternate years anymore. CRA will pay based on 40%+ access, and they pay you 50% of what you personally would receive if you had the kids full time.

https://www.canada.ca/en/revenue-ag.../publications/t4114/canada-child-benefit.html
(I got this from Google)
 
noteasy said:
Newfie76 behavior is principled and they are stating facts backed up by rulings in Canlii.
Click to expand...

So "facts backed up by rulings" state no payment is due, but that is corrupt and N76 believes he should pay and will. The honourable sucker excuse - I get it know.
 
StillPaying said:
My guess is that OP would receive full table support for 6 months, and pay offset the other 6.
Click to expand...
Actually, this would a lot depend on the judge and how reasonable ex is.

I’ve seen a case when family moved from 0/100 to 50/50, with receiver salary moved from 0 to 150k and it took case judge 2 years to agree updating CS. No one of course ordered repay support overpayment, judge was just irritated by payer mentioned this.

Get same type of judge, and good luck with your « just » 6 months change.
 
StillPaying said:
You keep saying this in multiple threads, yet it's still wrong.
Paying a setoff amount doesn't matter with regards to child benefits. And they don't alternate years anymore. CRA will pay based on 40%+ access, and they pay you 50% of what you personally would receive if you had the kids full time.
https://www.canada.ca/en/revenue-age...d-benefit.html
(I got this from Google)
Click to expand...

I keep saying it because it is true, backed up by Tax law, case law and even the CRA website.

You provided a link for the Canada Child Benefit. Normally I am detailed on this but failed to put in the words "eligible dependent" credit in this post for you.
Here is the correct link from the CRA site, click "yes" to those 2 questions THEN you will get to see the section "You can claim this amount except if:​":
https://www.canada.ca/en/revenue-age...ine-30400.html

You can claim this amount except if:​
  • The claim is for a child you had to make support payments for in 2022. However, if you were separated from your spouse or common-law partner for only part of 2022 because of a breakdown in your relationship, you may be able to claim an amount for that child on line 30400 (plus any allowable amounts on line 30425 and line 31800 of your return) if you did not claim any support amounts paid to your spouse or common-law partner on line 22000 of your return. Claim whichever is better for you
​
This also counts for claiming dependents and the associated credits.
The law and the case law on this is very clear:
-Party A must pay party B
-Party B must pay party A
-They must actually pay each other the amounts and not an offset. This statement is backed up by law and case law as well.
-The parties must agree who is claiming the credit.

So while some people claim to not have had issues or that they won their CRA hearing because the agreement said they are to pay each other both of those sets of people can get bitten later on if the CRA comes knocking and they do, hence, the case law on it created when people lost their cases against the CRA.

Harder vs the Queen is your start on this then the tax code then further cases that came up circa 2018
 
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