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Maintenance-Child and Spousal Support

It is a fact that often marital breakdown or the breakdown of a common law relationship leads to economic hardship. To some extent, the family unit is forced to continue to function as a common economic unit, except now there has to be two households set up, whereas before there was only one.

When there are children of the relationship, there continues after the breakdown of that relationship a general obligation on both parents to financially support the children, regardless of which parent is providing the children with their primary residence. The parent who provides the child or children with day-to-day care is entitled to receive child support from the other parent.

Child support payments generally come in two forms: 1) Basic Child Support; and 2) Special and Extraordinary Expenses.

Basic Child Support is calculated using set formulas (passed into law) that take into account three factors: income of the payor, number of children and province of residence.

Special and Extraordinary Expenses These expenses are defined by statute. The usual, accepted practice is to have each party pay his or her proportionate share calculated by dividing his or her income by the global income of the two parties combined and multplying the number obtained therefrom by the amount of the expense to be divided. However, while Special and Extraordinary Expenses are statutorily defined, this formula for dividing these expenses is not. While it is the usual way for the Courts and parties to divide these expenses, there have been cases where the Courts have ordered a different division.

Spousal Support is the other form of maintenance that may be payable under Canadian law. There may be a legal obligation on the part of the party with the higher income or earning potential to pay spousal support to the other party over and above any child support, at least for a period of time. However, in many circumstances this duty may not arise even when there is inequality of income, particularly in the case of marriages of shorter duration. The test for when a party is entitled to spousal support is defined in both legislation and case law, and the Court has alot of discretion to assess each situation on its own facts, particularly when it comes to deciding the amounts payable for spousal support. While there have been attempts to codify spousal support formulas in the way that has been done with child support, such "guidelines" remain discretionary and non-binding on our Courts, which regularly give decisions departing from these guidelines.

If your relationship was an adult interdependent partnership as opposed to a statutory marriage, you may still be entitled to financial support from your former partner under provincial statutes.

Two Common Topics in Maintenance

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