If my common law partner come up with a child support agreement, and the amount we come up with is outside the mandated

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Customer: HelloIf my common law partner come up with a child support agreement, and the amount we come up with is outside the mandated guidelines can we make it a legal doc?
Answered by Lawyer3786 in 5 mins 1 year ago
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Lawyer3786, Expert

Good morning. I am one of JA's expert lawyers and will assist you today. However, please note information on this site is for general purposes only and does not form a solicitor-client relationship. To answer your question, a Separation Agreement is also a legal document. So if your purpose is simply to have a Separation Agreement in place and not file anything in Court then yes you can agree to an amount that deviates from the Federal Child Support Guidelines. However, if the document is to be filed in Court for any purpose, then the judges will likely not agree to deviate from the child support guidelines, without there being a legitimate reasoning behind it. Also, I don't advise entering into a separation agreement with amounts that deviate from the guidelines for this reason as if either of you need to enforce that agreement in court, chances are the judges will not enforce the part where child support guidelines are being deviated from. But if it has to be done then you need to make sure there is a detailed explanation and legitimate reasoning as to why that is being done.

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Lawyer3786, Expert

For example, one reason why a judge might agree to deviate would be if one party is paying a significantly additional amount to the other as a part of matrimonial property or something along the lines. Does this make sense?

Customer
Hello. Okay thanks for this. So a separation/child support document we come up with on our own can be considered a legal document?
Customer
With the caveat that it won’t hold up in court if it deviates too far?
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Lawyer3786, Expert

For a separation agreement to be actually legal it has to be witnessed and sworn by two independent lawyers. It's called obtaining independent legal advice. If it's not duly executed and has certificates of independent legal advice attached, then either of you can challenge it in the future and essentially simply claim 'I entered into this without knowing my rights without a lawyer' and it not have any validity and courts may not enforce it. It is going to be a case-by-case basis in such situation where a judge will determine if it should be considered a legal document or not. Where as if done properly then it becomes quite difficult to argue against it.

Customer
Okay that answers it thanks
Customer
Can I ask another question?
Customer
For calculating child supports do I use my net Corporate self employed income? Or any I pay myself personally in dividends?
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Lawyer3786, Expert

Generally, Line 150 of your Income Tax return is what is used to determine child support.

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Lawyer3786, Expert

And it is the gross income that is used.

Customer
Line 150 or my personal or Corp return?
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Lawyer3786, Expert

I should also mention when deviating from child support guidelines, if the support being agreed to is more than what the person would actually pay then the courts likely won't have issues. But if the amount is lower then that would be an issue.

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Lawyer3786, Expert

Personal income.

Customer
my Corp income for the year is not taken into consideration? That seems odd to me
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Lawyer3786, Expert

Where things get complicated is if someone is using the corporate structure to declare very little to no income on their personal side to avoid child support obligations, that is when the judges will get into the task of seeing if they should be imputing someone's personal income at a certain level based on the job, experience etc.

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Lawyer3786, Expert

Otherwise the numbers that are taken into consideration are personal income numbers.

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Lawyer3786, Expert

For example, if you are showing $50K personal income, but your corporation's revenue is $500K you will be required to show justifiable expenses as to why your personal income is only $50K. If you can justify it then that is the amount, if you can't then a judge might impute your income at a higher number based on their assessment of what you should be taking home on the personal side.

Customer
I see. I wouldn’t be keeping money in the Corp to avoid child support, I would be keeping it in the Corp as I always do to avoid high personal income tax
Customer
2 years ago I grossed 220k,, but paid myself 80k
in dividends
Customer
to clarify, I am in Ontario Canada if that affects your answers
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Lawyer3786, Expert

Child support guidelines are Federal so they are the same.

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Lawyer3786, Expert

If you and your partner can come to an agreement as to how much child support you should pay and if that amount is reflected to be equal or greater than what your personal line 150 income is, then you will not have any issues.

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Lawyer3786, Expert

Does this all make sense? Do you have any further questions for me? I am happy to help.

Customer
This all makes sense and has been very helpful. I appreciate it
Customer
Oh wait
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Lawyer3786, Expert

Go ahead.

Customer
With common law separation, does my partner have any claim to increase in property value do of the home I owned before her? Same goes for gains I made through investments....
Customer
We lived together for 4 years and have a 3 year old son
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Lawyer3786, Expert

Generally speaking most province's have made it so that common law couples and marries couples are treated the same when division of matrimonial property is considered. There can be exceptions to every rule though and a lot also depends on the financial contribution that each side made into the relationship.

Customer
Okay. I won’t quote you but if I’d paid all the mortgage and upkeep of the house?....
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Lawyer3786, Expert

I was just trying to do some research online for Ontario (as this part does vary based on the Province you are in) and it seems that under common law for Ontario the general rule of thumb is:

  • Items purchased during the relationship belong to the person who paid for them
  • Items purchased jointly will usually be divide

    And The family home is treated like any other asset, and belongs to the person who purchased it, or to both partners if they purchased it together.
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Lawyer3786, Expert

Under the circumstances, I feel that for a 4 year relationship, you likely won't need to split the matrimonial home.

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Lawyer3786, Expert

Now further complications can arise if the other party made financial contributions in which case they could have a claim under constructive trust, but that is typically seen in situations where the relationship has been of a significant period of time of many many years.

Customer
Great. Thanks for all this. Have a good day
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Lawyer3786, Expert

Since this question was originally marked as child support, it was sent to me, what I suggest if you really wish to get into the nitty gritty of matrimonial property in your situation to start a new request specifically stating Ontario Property Division for Common Law Spouses, so that one of the lawyer experts that reside in Ontario and are fully familiar with Ontario law can chime in for your assistance.

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Lawyer3786, Expert

But I hope I have been able to assist in some way.

Customer
Great. Thanks.
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Lawyer3786, Expert

You are welcome. Nice to chat with you today and thanks for using JA. To speak with me directly again simply put "for lawyer3786 only" before your question and I will be happy to help. Thanks.

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