Written by Lori Gerbig
We at First Law have found that many clients don’t really have a good idea of what to expect from their lawyer or from the litigation process as a whole. So we thought that we’d put some thoughts together to give you, the client, an outline. This time we’re concentrating on documents and specifically documents related to child support and spousal support.
The legal system is very document intensive. It is always necessary for the parties to prove what the facts are. You prove facts generally by swearing in an affidavit or in court but also by having documents to substantiate what you’re swearing to. Different documents are necessary for different purposes.
In order to determine what amount of child support and spousal support should be paid, it is necessary to establish the income of each party and to establish the amount of certain expenses relating to the children in particular.
Child support starts with basic child support which comes from the tables of child support under the Child Support Guidelines. You take income of the parent who spends less than 40% of their time with the children and look at the basic child support table to determine how much support is payable (it depends also on the number of children). The starting point for income is the pre tax income at line 150 of the T1 General Income Tax Return.
There is a possible additional component to child support being a contribution to special and extraordinary expenses. The calculation of the amount payable for that additional component is based on the incomes of both parents. To determine the amount payable for special and extraordinary expenses both parents’ have to produce their income tax returns.
Special and Extraordinary expenses are defined in the Child Support Guidelines with some additional guidance provided by judges in writing decisions in past cases. Special and Extraordinary expenses are also known as “Section 7 expenses” because it is section 7 of the Child Support Guidelines where the definition is found. They include expenses such as daycare; medical or dental expenses that are not covered by any medical or dental insurance; certain expenses for primary or secondary education; certain post secondary school expenses for reasonable full time post secondary education associated with a realistic career goal for future; and certain activity expenses.
To prove income, the starting point is the income tax return. In almost every case where child support is in issue both parents’ income tax returns are necessary. In every case where spousal support is in issue, both parties’ income tax returns are necessary.
The only time that both parent’s income tax returns are not actually necessary is when the children live more than 60% of their time with one parent, there are no special or extraordinary expenses regarding the children, and there are no spousal support claims. In that instance, only the person who the children spend less than 40% of their time with has to produce their income tax return. The person who the children spend more than 60% of their time with does not have to produce their income tax return if there are no special and extraordinary expenses in issue and no spousal support in issue. But those situations are rare.
Most often both parties’ income tax returns are required. Sometimes if one party or the other is living with someone else, then that person’s income is also required to fully assess the amount of the contribution to special and extraordinary expenses.
The legislation requires 3 years of full and complete income tax returns with all attachments (T4s, T5s etc) and 3 years of Notices of Assessment from CRA. In addition:
- for employees, a recent paystub is required; and
- for self employed people, who have a corporation that they use for their self employment, 3 years of financial statements for the corporation are required
Sometimes, the income tax return, even with the attachments, isn’t sufficient and more information is required. In some cases, where people are self employed or have rental income or investment income or other complicating factors regarding their income, it is necessary to look at the pattern of spending to make a reasonable estimate as to the party’s real ability to pay child and spousal support. In those situations, bank statements and credit card statements are also required.
It is also necessary to prove exactly what the special and extraordinary expenses are (or to decide if certain expenses even qualify as special and extraordinary). For that determination proof is required of:
- Exactly what the expense is for (eg specialized equipment for an activity, or registration for a tournament, or extra help with schoolwork that was specifically recommended by a teacher);
- the amount of the expense (ie receipts or invoices and proof that the invoices were paid);
- if there is a possibility of insurance reimbursement, for medical and dental expenses in particular, then the information about the plan is required and if any reimbursement was received, the documents regarding reimbursement are required
For spousal support, both parties’ income tax returns are always necessary.
Your lawyer will talk to you about the specifics if necessary. But to be prepared, and to get the most out of your time with your lawyer, you should, at minimum, bring your own income tax returns with attachments and Notices of Assessment from CRA for the past 3 years. If you don’t have your own documents, you should request copies from CRA.
If you have access to the other party’s documents, you should provide your lawyer with as much of that information for the other party as possible. If you don’t have access to the other party’s documents, your lawyer can obtain the documents through the legal process.
If you bring the tax returns, your lawyer can send you away from your first appointment with at least a preliminary estimate of what to expect in terms of child support, special and extraordinary expenses and spousal support under different scenarios of parenting arrangements.
In future blog posts we’ll give you some more suggestions of specific documents to gather together to address other issues like parenting time and asset division and some more background on how the process works and ways to try to avoid court. So check back for more information.
We at First Law look forward meeting with you soon and working together to resolve your family law issues.
- Russell Tretiak Q.C.
- Lori Gerbig
- Candice Hall
- Brandon Hastings
- Rasjovan Dale (Articled Student)
Written by Lori Gerbig