Can Parents Create a Child Support Agreement Outside of Court?
In Quebec and the rest of Canada, whether separated, divorced, in the process of divorcing, or never married, both parents have an obligation to provide financial support to their children. There are specific federal and provincial guidelines in place that determine the amount of support payable based on factors such as each parents' respective income, the custody arrangement, and where the payor lives. However, parents can mutually agree to have the child support payments that differ from these guidelines. Since child support is public order these derogations are usually to agree to a higher amount than the basic amount set by the tables. Your lawyers can draft an agreement to be notarized and presented to the court.
In most cases, when the amount agreed upon is greater than the minimum required by law, there is no resistance from the Court when parents choose to be more generous than the guidelines. However, if the child support amount agreed upon by the parents is below the minimum established by law, then the Court will scrutinize the reasons why this is the case, the payor needs to prove financial hardship. Child support is to provide for your child’s minimum and most basic needs so when the parents agree to an amount inferior, it must be clearly justified as to why the parents want that the children receive an amount less than what’s legally considered the minimum. The Court will exercise discretion in accepting or rejecting the parents’ proposal when the child support mutually agreed is below the legal mandated amount (https://familylawyer.zone/child-support-quebec/#:~:text=Yes%2C%20the%20parents%20can%20mutually,what's%20required%20under%20the%20law).
If the parents do not sign a child support agreement based on amounts different than what’s required under the law, the federal or provincial guidelines must be followed. In certain circumstances, it can be more challenging to pinpoint the exact amount that one parent will have to pay to the other, for example, due to fluctuating, seasonal income, undeclared income, and incorporated sheltered income. For that, we have different strategies and tools to determine the most accurate child support that reflects the parents’ respective incomes. Child support deals with the proportion each parent will contribute. The payments must be made as long as the child is a dependent of the marriage, which means it does not automatically stop when your child turns 18 years old.
Child support payments in Quebec are intended to cover a child’s day-to-day needs, such as food, housing, clothing, and personal hygiene. According to Quebec Child Support rules, child support payments are not tax-deductible for the payor or taxable for the payee.
Quebec rules: if both parents live in Quebec
When both parents live in Quebec, child support payments are determined using the Quebec model for the determination of child support payments, which sets the basic amount payable. In order to determine the amount of child support, the calculation takes both parents’ income and the number of children into account. Under Quebec law, parents have to complete the Child Support Determination Form (also called Schedule I) to calculate the basic amount of child support payments. Child support payments increase on January 1 of each year, based on the percentage increase in the annual indexation.
Also, to ensure that the child support payments continue to reflect each parent's financial situation, the parents are expected to exchange their federal and provincial income tax returns, notices of assessments and reassessments (if any) once a year in order to recalculate and/or modify based on changes and/or fluctuation of income. Under section 17 of the Divorce Act, parties can request a modification of child support or cancellation if there is a change of circumstance that has arisen since a judgment was rendered in your file. For example, if one of you lost your job, has new employment, or is on disability, etc.
Federal rules: in a case of divorce where one of the parents does not live in Quebec
In a case of divorce where one of the parents lives outside Quebec, parents need to use the tables published by the federal government to determine the basic amount of child support payments, known as the Federal Child Support Guidelines. The amount of child support is determined on the basis of the number of children, the province or territory where the paying parent lives, and the paying parent’s gross annual income.
Special Expenses
Special expenses are paid in proportion of the parents’ respective income, whether applying the federal or provincial table for the calculation of child support, i.e. if parent 1 earns $50,000 and parent 2 earns $70,000, parent 1 will pay 42% of special expenses and parent 2 will pay 58% of special expenses. Special expenses are expenses such as private school, swimming lessons, cheerleading, ski lessons, karate, etc.
Before registering for an activity, each parent is to consult with the other in order to obtain the other parent’s consent. If one parent refuses to pay and the other enrols the child nonetheless, the enrolling parent would then be expected to cover 100% of the cost. Parents should try to maintain the same activities that existed prior to the separation and should not unreasonably withhold consent.
For any more questions or concerns, do not hesitate to contact us!