Why request a recalculation of child support?
Over time, the personal or financial situation of parents may change, making the initially established child support amount inadequate. Several circumstances may justify a review:
- A significant change in income: If one of the parents experiences a significant increase or decrease in their income (job loss, promotion, career change, etc.), the support amount may become disproportionate to their ability to pay.
- A change in custody arrangements: If the child’s custody time is redistributed between the parents (e.g., transition from exclusive to shared custody), this can influence the sharing of financial responsibilities and necessitate an adjustment.
- The birth of another child: The arrival of a new child in the family can affect a parent’s financial situation and, consequently, justify a request for recalculation.
- A change in the child’s needs: The emergence of specific needs, whether related to health, education, or extracurricular activities, can also lead to additional expenses that must be considered.
Requesting a recalculation of child support thus ensures that financial contributions remain equitable, in accordance with the law and the child’s best interest.
Termination of payments and cancellation of child support: when and how?
As part of a child support recalculation, it is also possible to request the termination or cancellation of support payments, if certain conditions are met. Contrary to a preconceived notion, the child reaching the age of 18 does not automatically mean the end of the support obligation.
In what cases can child support be terminated?
Child support can only cease if the child is an adult and has become financially independent, meaning they can provide for their own needs.
However, other factors may influence the decision, including:
- Pursuit of post-secondary studies (CEGEP, university, etc.);
- The child’s physical or mental health;
- The child’s actual level of autonomy (e.g., do they still live with a parent?).
Each situation is evaluated on a case-by-case basis by the court. Support may be maintained beyond 18 years if the child is still dependent.
Recalculation of child support for an adult child
It is possible for child support to continue even after the child has reached the age of majority, especially if they are pursuing full-time studies or have special needs. However, conditions may change over time.
For example, if the child obtains stable employment, leaves the family home, or interrupts their studies, this may justify a recalculation or cancellation of child support. Similarly, if the costs associated with their post-secondary studies increase significantly, an adjustment to the amount may be necessary. In such situations, courts evaluate the facts on a case-by-case basis. It is highly recommended to consult a family law attorney to determine if the situation allows for a revision of the amount paid for an adult child.
Which law applies: provincial or federal?
Before proceeding with a child support recalculation, it is crucial to identify the legal framework that applies to your situation. In Quebec, the choice between provincial and federal law primarily depends on the parents’ marital status and their place of residence.
- Quebec provincial law
The Divorce Act does not apply in certain cases, particularly when parents are not married. Thus, Quebec provincial law applies in the following situations:
- Both parents reside in Quebec;
- Only one parent lives in Quebec and the parents are neither married nor divorced (for example: de facto spouses).
In these cases, the calculation and recalculation of child support must be done according to the Quebec government’s Child Support Determination Form.
- Federal law
The federal Divorce Act applies in cases where:
- Parents are divorced or in the process of divorcing;
- One of the parents lives outside Quebec, in another Canadian province or territory.
In this context, the amount of child support is determined according to the Federal Child Support Guidelines, which consider the paying parent’s income and the number of dependent children.
Can one deviate from the amount prescribed by law?
Even if both parents amicably agree on a new amount, court authorization remains mandatory to validate any agreement that deviates from the amount established by applicable laws. The judge must ensure that the agreement respects the child’s best interest.
Steps to recalculate child support
Recalculating child support is not automatic. It is a structured process that requires the preparation of documents, the evaluation of the family and financial situation, and court approval. Here are the main steps to follow to have child support recalculated in Quebec, whether you are under the provincial or federal regime:
- Document your financial situation.
Before any official request, it is essential to document your financial situation as thoroughly as possible. The following elements are generally required:
- Notice of assessment from Revenu Québec and/or the CRA (Canada Revenue Agency) for the last two years;
- Recent pay stubs or proof of monthly income;
- Proof of non-wage income, such as self-employment income, business income, allowances, employment insurance benefits, etc.;
- Child-related expenses: childcare costs, uncovered medical expenses, tuition fees, extracurricular activities, etc.
These documents help justify a significant change in the financial capacity of the paying or recipient parent.
2. Verify the applicable legal framework
As specified in the previous section, it is crucial to know whether you fall under the Quebec provincial framework or the Federal Child Support Guidelines. This will influence the calculation method to be used and the documents required for your application.
3. File a request for modification with the court
Even if both parents amicably agree on a new amount, a judgment is necessary for the adjustment to be officially recognized. The process varies depending on your situation:
- If you already have a court judgment: you must submit a request to modify the judgment.
- If no judgment exists (verbal or informal agreement), it is advisable to formalize support through an initial application to the court.
4. Seek legal counsel from a lawyer
While some steps can be taken without a lawyer, the intervention of a family law professional can facilitate the process, especially in the following cases:
- The other parent disagrees;
- Your financial situation is complex;
- There is a history of non-payment or legal conflicts.
A lawyer can help you to:
- Gather the correct documents;
- Complete forms in compliance;
- Draft the application to the Court;
- Represent you before the court if necessary.
Is child support taxable?
A frequently asked question is: should child support be included in your tax return?
The answer is simple: no, child support should not be declared when preparing your taxes, neither for the parent who receives it nor for the one who pays it.
Since the new tax regime came into effect on May 1, 1997, child support payments are neither deductible for the payer nor taxable for the recipient. This rule applies to all support fixed or modified after this date, including recalculation cases.
Why is it important to seek assistance when recalculating child support?
Recalculating child support may seem simple on the surface, but it is often more complex than one might think. Each family situation is unique, and legal rules vary depending on several factors: marital status, province of residence, the child’s autonomy, or changes in income.
Even with an agreement between parents, court approval is imperative for any change to be legally valid. This is why it is always essential to consult a legal professional to ensure that your steps comply with the law and that your rights and those of your child are protected.
In summary
- Is recalculation automatic every year?
No, it is possible to use the SARPA, which allows for recalculation at a lower cost, but otherwise a new judgment is necessary. However, support is indexed annually according to the law.
- What if the other parent refuses the recalculation of support?
Paying child support is a parental obligation. In this situation, it is possible to apply to the court to request a modification of child support, considering the respective incomes of the parents;
- Does a 5% change in income justify a recalculation?
Each situation is different and takes into account several factors. To get accurate information, it is best to redo the calculation in collaboration with a family law professional.
