Determining the support issue is often the most difficult issue in a matrimonial dispute. The law has evolved as governments have made major changes to support laws by introducing guidelines both for child and spousal support. Judges are also giving modern day interpretations on the law of support. In this article I will outline the main issues of support and give some broad principles.
There is “periodic support” which is usually monthly. There is a one time “lump sum support” which is used only occasionally and mostly for spousal support. A major difference between the two is that spousal support is tax deductible to the payor and tax includeable to the payee when it is periodic support. Child support has no tax consequences.
Support also consists of many related issues other than the monthly amount. Those issues are: length of time of payments, cost-of-living adjustments, extra-ordinary expenses, higher education expenses, life insurance, drug and dental insurance, tax issues, variations, enforcement, and mode of payment.
The factors and objectives of support are found both in the federal Divorce Act and the provincial Family Law Act. The means and needs of the parties are considered but also the length of the marriage and the functions performed during the marriage are considered. There are also many other factors set out in the legislation. The objectives of spousal support include the recognition of economic disadvantages arising from the marriage or its breakdown and to promote self-sufficiency. The objective of child support is to recognize that both spouses have a joint financial obligation to support their children according to their respective abilities. With many factors to consider each individual case stands on its own and must be discussed with one’s lawyer. It is very hard to compare two individual cases as there are so many varying factors. Though we now have separate guidelines for both child and spousal support, there is still discretion and ranges for spousal support and still discretion and interpretation issues for child support. There is also the major issue, especially for the self employed as to what someone’s income really is.