If you have questions about child support you will find many answers on this episode from a family lawyer.
If you have questions about child support you will find many answers on this episode.
Family lawyer, Joshua Wasylciw, of Resolve Legal Group, shares information to help you sort through the details of defining and calculating child support. You'll have a better understanding of who it belongs to and how payments are determined.
For more information, you can find Joshua online @ resolvelegalgroup.com
The justice child support link Joshua mentioned can be found here
Phone: 403-229-2365
Facebook: Resolve Legal Group
Instagram: resolvelg
LinkedIn: Resolve Legal Group
Watch the video of this interview on our YouTube channel.
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Joshua Wasylciw 0:00
Hi, I'm Joshua Walsylciw from Resolve Legal Group and you're listening to the Divorce Magazine Canada podcast.
Deena Kordt 0:07
Hey, are you or someone you care about considering dealing with, or been through a divorce or separation? Well, you're in the right place. You don't have to do this alone. There are people who care and want to help. Hi, I'm Deena court, and author, blogger, publisher, and empowerment coach. Thanks for joining me on the divorce magazine Canada podcast. You are going to hear from our team of experts and professionals how to navigate this difficult transition in your life easier, more efficiently, and with better outcomes. Did you know we host online divorce resource groups that are free to attend, and everyone is welcome? Check out the links in our show notes. And be sure and join us. We love bringing experts to you, please refer to our terms of service available on our website, divorce magazine canada.com. And stay tuned at the end for the legal language. Ready? Here we go. You've got questions, we've got answers and our expert today. Joshua wass le sue of resolve Legal Group has some information to share about child support how that is calculated, and how that works during a divorce or a separation and afterward, including if you need to review that at some time in the future. So Let's meet him now. Hey, Josh, I am super excited to have you here on the podcast today. And part of my mission is to bust the myth about the evil lawyers that are involved, you know, those, those mean dogs that are being sent to attack the exes. And, unfortunately, lawyers get a bad rap. And I really am happy to introduce more of your team as well. Resolve has been really important part of the divorce magazine Canada team. And I'm really pleased to meet you and introduce you to my audience. And the topics that you have to share are so relevant and a mystery to many people. So welcome to the show, please tell us a bit about yourself. And if you care to share why you were led down the path to be a family lawyer.
Joshua Wasylciw 2:32
Sure. Well, thank you for that wonderful introduction, I'm sure happy to be here today. You know, it's interesting what you say about the meaning dog lawyer myth. I used to believe in that prior to going to law school as well. And the more and more that I practice, the more I realized that clients tend to look for those lawyers in the start. And by the end, they tend to be very happy when they find one who was very solutions focused and not not just out there for you know, to go for the jugular is an expression that I hear a lot. So a little bit about me, I have been practicing family law for about five and a half years now it was five years on June 1 That I was called to the bar. I for that entire time. I was with resolve Legal Group, or I have been resolved Legal Group. Sorry, I'm still there now. And I love it there. It's a great team to work with. I have a little bit of a random path, I guess to family law. When I finished law school, I landed up going to work for the federal court and I was there for a couple of years and they deal with a lot of tax matters. I landed up meeting a tax lawyer who then agreed to give me an article I have no idea why because I don't know the first thing about taxes. He was a solo practitioner that when he told me that after, after my article, he wouldn't be able to keep me on but he tried to find me a posting. And he was or is really good friends with the lady who owns resolve Cindy Morin. And he introduced me to her and she and I just hit it off. And she was looking for some help at the time. And I finished and I remember telling her, Hey, I don't know anything about family law. I'll give you three months. And if it doesn't work, we'll go our separate ways and still be friends. And here I am. Years later just loving it.
Deena Kordt 4:30
I love that story. I'm happy you shared it. And it it lends to your your personality and how people see how easy you are to work with and the value that you bring. And the fact that you're part of these teams is is really interesting. I like that path. And you were open to following an invitation that didn't necessarily seem like a good fit. Initially, and look where you are now.
Joshua Wasylciw 5:03
I was my I, you know, I gotta give some credit there to my articling principal, he sort of voluntold me to go work in family law. And he said, as a tax lawyer, he said, nobody likes family law, but just just go do it. It'll be good for you. And I kind of thought, well, I'll give it a shot. And I did. And like you said, I was open to it. And and I'm I do like it. I love being able to help clients.
Deena Kordt 5:26
What topic are we going to start with today, Josh?
Joshua Wasylciw 5:30
Well, I was thinking we start with some stuff on child support, because that tends to be one of the most pressing areas. When people come to see us, it's, you know, how am I going to pay the bills? I've got these kids, they're hungry, they have school supplies need to be purchased? What do I do?
Deena Kordt 5:47
Right? That is a scary topic. And is to consider being a parent, and managing this on your own. And all the other things that they're facing, as they go through a divorce, it would be comforting if they can understand a bit how this is handled and managed and calculated. And so I really appreciate you offering information around this area.
Joshua Wasylciw 6:15
Yeah, so not a problem happy to do it. I guess I'll start by just saying a little bit of background. So when clients come to see me, I generally tell them, whether they're married or not married and separating from what people call a common law union. There's five things to do. You have to settle parenting, you have to settle the decision making, then there's spousal support, child support and property. When I tell people, if you're going to represent yourself on any one of those areas, the best one to represent yourself on is child support, because it is actually the easiest and most straightforward. Definitely not for the people involved. It's not easy. But from a legal perspective, and a procedural perspective, it's very straightforward, because the steps are, essentially figure out what the party's incomes are. And once you know that, you apply a mathematical formula to it, and it gives you the number. And there are, of course, nuances there and judges do have some discretion to deviate from that. But practically speaking by and large, that's very, very rare. Disposal spousal support, journey or process first starts probably, unsurprisingly, by determining Well, what is the income that we're basing this off of? And when we look at that, we will I guess, even before that, what we do, as we say, Well, were they were the children living? Are they living with mum? Are they living with dad, or are they kind of in a shared situation, and if so, will how much of the time to the children live with each. So if children are spending about 5050, with mom and dad, then we need the income. So both mom and dad, if the children are spending 60% of the time with dad, or mom, and then 40% of the time with the other parent, we and the law, essentially consider that close enough to 5050 for it to be shared. So even if it's a 6040 situation, we still need the incomes of both the parents, if you if you have one parent who's living or who has the children with them, 61% of the time or more, then we for the basic child support called Section three, we only need the income of the parent who the children are not living with. So that being said, we start the process by exchanging what's called financial disclosure. And that includes a whole host of things. Some of those include your last two years or pardon your last three years of T one general income tax statements, your last three years of notices of assessments, your last three pay stubs. If you're receiving any type of social assistance, information regarding that if you're the beneficiary of a trust information regarding that if you're self employed or if you own a company, then we need financial information regarding the business. If it is a company, we need financial statements for past years and it's just a whole host of information. And I'm not going to go through everything that's required. But at the end of the day, what the law says is the payor parent has a duty to disclose any information that is relevant to determining what their actual income is. So after we have have done that we've exchanged the information. Then we say well, okay, what what is the income and for people who are for most people who are T Ford employee they get up, they go to work, they have an employer, they get a paycheck, it's pretty straightforward, especially if they're only working one job. So in those types of situations, a lot of the time, we can just look at their T one general tax return and their notice of assessment and look for the line 150, or the CRA recently changed it. Now it's the line 15,000. And that gives you what your total total taxable income is, for that year. For most people, that's where the analysis stops. For some other people, people, for example, who own a corporation, there's other nuances. And I'll explore that a little bit. But but that's the starting point. So we think around what the person's income is for the year, we then put it into the child support calculator. So the Department of Justice website has a free online calculator. And it asks you three questions. One, how many children are there, two, what is the pier parents income, and three, what is the province of residence of the payor income, you put those three criteria in there and you hit the submit button, and it literally gives you the amount of child support that's due per month. Now this type of support is called Section Three child support is the child support that is paid every month for the children to the parent that they're living with for just regular life. So contributing towards the mortgage contributing towards the internet bill and the food in the fridge. And, you know, clothing and things of that nature, just use those those everyday sort of costs that are involved in raising a child. There is another type of child support, it is called Section seven child support. And I'll come back to that in a minute. But when we do the section three child support calculation, it's been sold a number, and that is essentially the number but as old judges have discretion to deviate from that, but practically speaking, they rarely do. So if you're in a situation where the children are living with, let's say, Mom, 61% of the time, 90% of the time, 100% of the time, whatever it is above 60. We take dad's income, we put it into the calculator, and it tells us how much dad is going to pay mom each month for those children. Pardon me, if it's a situation where the children are shared between mom and dad, then what we do is we do the calculation twice, we do the calculation as if the children were living full time with mom. So we put in dad's information and hit submit, and it provides us a number. And then we put in children living with dad, and we put in mom's income information gives us a second number. And unless the people are making exactly the same amount of income each year, there's going to be a difference between those two. So sometimes dad will literally pay the amount to mum and mum will literally pay the amount to dad and there are some some tax reasons for doing that in some situations. But practically speaking, what will often happen is the higher earning parent will just pay the net difference of those two numbers. So if Mum owes dad $1,500 a month, and Dad owes mom $1,200 a month, then mum will pay the difference that $300 difference, and then we'll go forwards with that. In situations, sometimes you'll have situations where there is not shared parenting, but one child is living full time with one parent and another child is living full time with the other parent. So they're not actually going back and forth between homes but but they're staying you know, child one wants to live with mom and child who wants to live with that. And in situations like that we have to tweak those calculations in order to make sure we have the right amounts being paid. But in a nutshell, that's that section three child support, it is very, very, very easy to come up with the numbers after the incomes are known. And when you go to court with those numbers 99.9% of the time that that's what a judge is going to order. Now, I mentioned before that sometimes it's not that easy. So if you have people who have a corporation or if they're receiving money in addition to a T four so investment income or income from a trust or things of that nature Are, we need to account for that. And one of the most common things that we see is people who have a small corporation or corporation, that's just them. And the corporation might be pulling in, let's say, $300,000 a year. And after write offs, there's $150,000, left, and then the parent decides, well, I'm just gonna pay myself $50,000. And I'm going to leave that other $100,000 in the corporation, and then I'm going to lower the amount of child support, I have to pay because my personal income is lower. Fortunately, or unfortunately, depending on which side you're on, it doesn't work like that. What the law says is, if there's a bunch of money that's left in corporation, we're going to assume that that money could have been pulled out and paid to that person as income unless they can show a good reason why that money should be left there. So you can't shelter or reduce child support simply by starting a corporation.
Speaker 1 16:07
Something else that we see quite often with people who have corporations is that they will be very aggressive in writing off as much as they possibly can through the corporation. So again, in the scenario I just gave, maybe a corporation has $300,000 in income, and $150,000, and write offs. And the parent says, Well, I'm going to pull out $150,000, from that corporation for my personal income. But when we look at financial statements, if we see that other than $150,000, and write offs, maybe only 50,000, is actually legitimate. And other stuff is more restaurants and, you know, trips to wherever for the weekend and things of that nature, we can actually take those personal expenses that were claimed as a write off, and we can put impute them back into the person's income. So it does get a little bit more complicated when you have these other scenarios. But But that's, that's the basics of Section Three child support.
Deena Kordt 17:16
We'll be right back to talk to Joshua about section seven of child support. But I wanted to make sure that you knew about our divorce resource groups, and really what they're all about, they are a place to meet some of our support team. So you can learn about what resources are out there that can help you where you are and where you'd like to get to, as well as meet others who are experiencing divorce and separation. Check those out. They're all on our events page on divorce magazine, canada.com/events. And the link is in our show notes. I hope to see you there. Now let's get back to our conversation with Josh.
Joshua Wasylciw 17:50
The other type of child support that we look at is called Section seven child support. And if you're wondering, these sections come out of the federal child support guidelines, there are a regulation there are enforced their law, it's not a it's not just a suggestion, it is law. But if you want to look them up, that's what it's called. So section seven is for special and extraordinary expenses. And unfortunately, the government hasn't done a particularly great job in defining what these things are they they've given us a list of things, but they're not. It's far from clear what falls into the section. But I oftentimes will tell people to think of a very large one time expense that's needed for a child that isn't ongoing. And that would fall into a section seven expense. So let's pretend mum and dad are both self employed. And neither one of them has extended health or dental coverage. And a child needs braces and braces are can be 10s to 1000s of dollars. How we treat this is not it doesn't come out of the monthly child support amount that is going to the parent where the child lives. But what we do is we save the person apart Meet the Parents are going to pay for that expense in proportion to their incomes. Now, I'm a lawyer so that means I'm bad at math. So I use some basic numbers here. But if parents so in this case, let's say dad is earning $70,000 per year, and mom is earning $30,000 per year and we have a $10,000 expense for braces, that is going to be 70% of that and mom is going to pay 30% of that. So it's in proportion to their incomes. There are some things that are generally acknowledged to be section seven expenses. So essentially anything that I Uh, goes to medical or medical adjacent things for a child. So when I say medical adjacent, I mean like counseling or, you know, massage therapy or chiropractic. So those sort of those professions that support health, that that's generally a section seven expense. If a parent requires child care for the purposes of going to work, then being ill, or returning to school to retrain, that childcare is also a section seven expense. I do tell my clients, so if they want to go to Vegas for the weekend, and they need a babysitter that does not count as a section seven expense, the prop the big problem with Section seven, though is these extraordinary expenses for extracurricular activities. So whether or not you know, camp during the summer, or fees for hockey practice, or choose for dance, constitutes a section seven expense or not, is very flexible. And oftentimes it depends on the party's particular situations.
Deena Kordt 21:19
Where would cell phone cell phones fit in there?
Joshua Wasylciw 21:24
So that's a really good question. And essentially, is I don't know, because it's very, very different. You know, if you've got two parents who are each earning, let's say $35,000 a year, and one parent wants a six year old to have a cell phone, that might not be a reasonable expense to ask the other other side to share. But if both parents are earning over $100,000 per year, and their 17 year old needs a cell phone, because they are constantly traveling with their soccer team to places that mom and dad can't always be at, suddenly that that looks like a lot more reasonable case where maybe the phone should be shared. I should say that section seven expenses as settled in the guidelines. But parties are not limited to them. People can agree that things are section seven expenses if they want to. So I have seen people agree that school fees or section seven expenses, and there's there's some case law out there that suggests that they are. But I've also seen people agree that school supplies so literally, pencils, and pens and glue are section seven expenses or haircuts or section seven expenses. If there's agreement on on something being a section seven expense, I can't imagine a situation where a court would would not allow that.
Deena Kordt 22:57
That's really interesting. Now this, of course, the first question that comes to mind, because you keep referring to the incomes, these will fluctuate over time these can change. And is there some type of disclosure or some adjustment some reassessments that are done over time?
Joshua Wasylciw 23:17
Really good questions. So child support is technically supposed to be based on current income. lawyers tend to be a little bit lazy, though, and what we do is, it's harder to determine current income for the year than it is to simply look at last year's tax returns and use that number. So if we look at the last three years of income taxes, and it looks like mom and dad have generally the same year over year income, oftentimes we'll use that previous year's number. So we'll use 2022 for 2023. And then in 2024, we'll use 2020 threes number and we'll kind of leapfrog one year behind. And then once a child turns 18, or whatever age they stopped being dependent upon mom and dad, then we'll do one final adjustment. But you're right in that sometimes these incomes to change dramatically. Especially in a province like Alberta, where our economy is so tied to something like oil and gas one year somebody might be earning $300,000, and the next year they might earn $40,000 If there's been a big crash of some sort. So yes, there is in both the Alberta rules of court and in the Family Law Act, a right for both parents to seek updated disclosure once a year. So generally what we recommend to people and what we put into court orders and into agreements is that the parties agree to honor before June 1 of each year, provide the other with their previous years, tax information, financial statements and any other Coming information that is required to determine their income. So you don't get that you don't have to use June 1. But that's generally what we do. If though we're halfway through the year, and let's say Some, somebody's paying their child support based upon 2020, two's income, and suddenly in August of 2023, which is where we are now, they lose their job and they have zero income, it's perfectly reasonable for that person to come forward and say, Hey, I no longer have an income, I we need to reassess child support right now, because I simply have nothing coming in. Now, that leads us into the final area that I had wanted to talk about today. And that's what happens if job loss is maybe not unexpected. So we call that intentional unemployment or intentional underemployment. And sometimes what we'll do is we'll or what we'll see is we'll see people that say, I don't want to pay child support. So even though I was earning $150,000, last year, I'm now going to quit that job, and I'm going to I'm going to go find a minimum wage job somewhere, and I'm just going to live off my savings, I don't have to give that ex of mine however much money per month. Or what we might do is we might see them, you know, we've they're high paying jobs for the worker, a lower paid job, instead of living off the savings. So whether it's intentional unemployment, or intentional underemployment, the law has a method of dealing with this, because it doesn't want to allow people to get out of their child support obligations and make it hard for the other side, what the law can do is courts can impute any income to a party. So in my example, were somebody who's making $150,000 per year, and they quit that job. And they now are earning $30,000 a year doing some other job, the other parent who's receiving the child support can bring a court application and they can say to the court, hey, look, I don't think this is fair, this wasn't a really legitimate job loss, I think the child support should be higher than what it would be if it was $30,000 per year. And the court doesn't have the power to force somebody to go and get another job or go and get a different higher paying job. But what they do is they have the power to impute their income. So what that what the court can do is they can say, parents who put your $150,000 job for a $30,000 a year job, that's fine, but your child support is still going to be calculated based upon $150,000 per year, or $140,000 per year or $80,000 per year, whenever the court thinks is fair. And what that means is the monthly payments are going to be dramatically higher than they would be at $30,000 per year. And it's essentially up to the parent who engaged in a little bit of misconduct to figure it out, come up with the money somewhere. So that the law does have methods of making sure people don't shirk their child support obligations. For a long time in Canada, the courts have recognized child support being the right of the child and not right of the parent receiving it. The parent receiving it is responsible for actually paying for things and managing the money. But that parent doesn't have the right to simply say, Well, okay, I agree with you that, that you don't have to pay child support, or I agree that you can pay less. If parties do that, even by agreement, sometimes the court will step in and say, You know what, that's fine mom and dad, you guys agreed to this, but we're still going to impute income to you guys in X amount, and we're going to order child support be paid because the child has the right to have approximately whatever the standard of living is.
Deena Kordt 29:19
That is very interesting. I think that's a point that maybe many aren't familiar with. And it changes the value of that child support in knowing that it's going to a parent to manage, but this is a right of the child to receive this and this belongs to the child for their care basically.
Joshua Wasylciw 29:44
It does and I have seen cases where maybe mum and dad have agreed a child support isn't paid for whatever reason. And then 567 years a couple the parent who should have been receiving the money has maybe some buyer's remorse and they decided they want to go to court to get retroactive child support for that time. And even if they had written agreements in place, there's a very good chance that the court is going to say, too bad. The parents who should pay child support, you've got to pay the back pay, because Mum and Dad, you don't have the right to contract away something that is the right of your child.
Deena Kordt 30:28
Wow, that is interesting. And so with, with the retroactive that can work both ways, if there's been a change in income, and that that payment is still being made. But there hasn't been a disclosure. You know, maybe maybe that balance has changed, like, let's say, 7030. Work with the numbers that you said, if that's changed, and now the one that had been making seven, he's making 30, and the one that had been 30, has is now making 70. But they aren't disclosing what they're making, then how, how can that be adjusted and kept fairly, fairly done? And can it be done retroactively.
Joshua Wasylciw 31:11
So it can be done retro actively, for a long time, the courts tended to see that you could only go backwards up to about three years, unless there was really good reason to go back beyond that. That is changing now. And the courts seem to be more and more open to going backwards, essentially, as far as need needed in some cases. And you weren't right. Sometimes the parties won't update financial disclosure or or sometimes they might be separated for three years or 10 years before they decide, Hey, we should get a lawyer and figure out what we need to do to get a divorce. And the courts can absolutely order retroactive child support, if there's been none paid for a period of time, or if the amounts being paid weren't correct, we can do a retroactive adjustment. So if there was if we're using 2020, two's income tax information for 2023, and payments are being made. And then in 2024, we see oh, wow, parent number two had actually double the amount of income in 2023, than they did in 2022. Then when we have that information in early 2024, we can do an adjustment to recalculate what should have been paid in 2023. The same is true for an underpayment as well, if there has been over three and under or an overpayment. So it doesn't matter which way it goes. The one exception to that is if somebody has been overpaying child support for years and years and years on end, and then they suddenly say, Well, I want to revisit all of this. Depending on how long that has been and how much the overpayment has been, sometimes what courts will do is, they're going to say, we're not going to order that the parent receiving it repay this, because it's been 10 years, and it's been $100,000. And that would be unduly onerous, to suddenly order the parent caring for the child to pay that back.
Deena Kordt 33:21
Right. And they would just adjust future payments or repay a portion of it. And what brings that to mind is because it during three years of a pandemic, there were probably situations fairly commonly coming up like that, where there's been, maybe not a complete imbalance, but a very a blip in, in the trajectory of a career say, they may have taken a quite a reduction or they've pivoted. It's, you know, affected people in some very unpredictable ways.
Joshua Wasylciw 34:02
Absolutely. And we see that a lot. And at the start of this podcast, I mentioned that it's, you know, child support is one of the easiest things to to self represent on if you're going to self represent. Because the nice thing about it is the courts aren't allowed to provide legal advice, but the courts are allowed to do math. And they're not going to allow people to go wildly incorrect with with child support. So if there has been a situation where somebody has had to change in their career and the child support has continued to have been paid at the rate that it was but you know, halfway through the year a parent lost their job and through no fault of their own, but they kept paying because they thought they were doing, you know, whatever they could to support your family. Courts do have lots of discretion. If you go in there on your own to essentially say Well, no, that's not how the math works, we're going to tweak this a little bit. The final thing that I'd like to leave you and your listeners with, with a final thought I should say is that it is very important to remember that it is actually the payor parents responsibility to disclose their financial information. It's not the payee parent's job to chase that up. So the parent who is making the child support payments, has an obligation to produce that information, they cannot let years go by and then simply say, well, I shouldn't have to pay more, because I was never asked for this information, there's a positive duty on the payor parent to provide that information. Lots of times people don't. And it's not because they had a bad motive or intention or anything like that, they just didn't know about that duty. But for your listeners who are making child support payments, it is in their best interest to provide updated income information, as soon as they get it to make sure they're paying the correct amount. So they're not in a situation where years go by and suddenly they have a court order, where they're having to pay 10s of 1000s of dollars back paid.
Deena Kordt 36:16
That's a very good point to make. I thank you for that, and just helps people just lean into it and not make it any emotional thing. That's just, you know, for the better part of their interest, and no surprises down the road. And so then, of course, that brings the question of the payee, the one receiving those payments, it's they're also obligated to provide disclosures. Correct?
Joshua Wasylciw 36:47
Yes. So even if children are living with one of the parents full time, and that parent doesn't owe any section three child support, they still need to disclose their income, because that's how we can calculate the section seven child support. And even if a child doesn't see one of their parents, for a full year, that parents still has a responsibility to be contributing to those section seven expenses. So both parents need to be disclosing disclosing income information each year to make sure that the right amounts are being paid.
Deena Kordt 37:23
And this again, reiterate is all in the interest of the children, this is their right to receive this, this is how they are, you know, child support, this is theirs. And if if parents see that instead of fighting over, you know, all the emotion of this upheaval and seeing it as it's going to that other parent that can really change the the emotion behind it, this is for your child and for their best interests. So
Joshua Wasylciw 37:51
it is and you know, at the end of the day, if you have good lawyers, and if you have the income information determined or the incomes determined, there's rarely a reason why child support should actually go to court. You know, there are the odd case of where there may be undue financial hardship, or there may be some very unique set of circumstances. But for most people who have two parents who are both working, and everybody's more or less in agreement on what the incomes are of the parties, it's really just a mathematical exercise and the calculators on the Department of Justice website. So it's a pretty straightforward process.
Deena Kordt 38:43
Now, we will share that link in the show notes as well. And I'm excited because you will also be a presenter at our online conference, our divorce symposium that's coming up in September, it's coming up on the 26th. It's in the evening for three hours. And we'll have several presenters, you are one of them. So I'm really pleased about that. And we have more topics that we are going to be covering with Josh. So this episode will be airing very soon. And please reach out and ask him questions. His contact will be in the show notes as well so that you can follow up with him and, and and work with him if you're looking for a lawyer in a team that can support you through this process. Now, thank you so much, Josh, for being here. I'm really happy that you shed some light on how this is calculated how people can do that. And that this is something they could consider self representing themselves during a divorce or a separation. So a lot of a lot of encouraging information because it's something that we don't necessarily want to tackle. There's so much finance and math involved. But if we can understand how important It is and that it. It's pretty cut and dried. You plug in the numbers, and it and then you just follow what it what the results are.
Unknown Speaker 40:11
Yes. So thank you for having me.
Deena Kordt 40:13
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