Vancouver Divorce & Family Law Blog - Henderson Heinrichs » Child Support

It’s Income Tax Time: Deduction of Legal Fees

kevin — Mon, 02 Apr 2012 21:30:56 +0000

When you pay money to a lawyer to:

- collect late support payments from a current or former spouse;

- obtain a spousal or a child support order from a current or former spouse; or,

- seek an increase in spousal or child support payments from a current or former spouse,

you can deduct those legal fees from your taxable income. These deductions should be set out in line 221 of your Income Tax Return, and are discussed further in a tax guide issued by the Canada Revenue Agency. Henderson Heinrichs can help review and identify which client expenses are deductible to make the process as simple as possible.

New 2012 Child Support Guideline Tables: Update Your Payments!

kevin — Mon, 09 Jan 2012 19:36:41 +0000

As of December 31, 2011, there are new Child Support Guideline Tables for child support payments. If you are paying child support, you need to update your payment as at January 1, 2012 to bring it in line with the new table amount to avoid the possibility of falling into arrears. This is the case even with an existing court order or separation agreement that specifies the amount of child support that is payable.

Please contact our offices to find out if your support obligation needs to be adjusted to reflect the new table amounts.

New Child Support Guideline Tables

kevin — Tue, 29 Nov 2011 23:15:59 +0000

The Child Support Guidelines have been due for an update, and the DOJ has obliged. They have posted new table figures which will be used to make Guideline Child Support calculations from December 31, 2011 onwards. The adjustments are not even across the board. In some higher income cases, obligations have been nudged slightly higher. For some medium income calculations, the payor is actually required to forward less money. If you have a child maintenance obligation, or if you are receiving child maintenance, it would be a good idea to look at the new tables.

Post-Secondary Education Costs

kevin — Thu, 03 Feb 2011 21:03:30 +0000

There can be a positive obligation on separated or divorced parents to support a child through post-secondary education if that cost is labelled an extraordinary expense pursuant to s.7 of the Federal Child Support Guidelines. That section states that,

Special or extraordinary expenses

7. (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

The question this raises in my mind is why separated or divorced parents are subject to this potential obligation when children of parents still together are subject to the vagaries of their parents’ decision. Would a child of parents who are still together be able to secure similar funding if the courts were asked to intervene?

Don’t Wait Too Long, Part II

kevin — Wed, 14 Jul 2010 20:07:12 +0000

There seems to be a spate of “retroactive child maintenance for adult children” cases coming out of the courts. The seemingly immortal Hartshorne case is once more in the forefront, with the parties appearing before the B.C. Court of Appeal and (hopefully) finally resolving all of the issues arising from their ill fated 1989 marriage agreement. This case went up to the Supreme Court of Canada and then was sent back down to the Supreme Court of BC level to determine the issue of child support. Orders were made which were then appealed again by Mr. Hartshorne to the B.C. Court of Appeal. The interesting fact here is that Ms. Hartshorne, after years of having been buffeted from court to court, was trying to collect arrears of child maintenance for her eldest son. She brought that claim on in 2007 when the child was 19 years old. Mr. Hartshorne took the position that “the trial judge did not have jurisdiction to entertain the respondent’s application for retroactive and prospective support for the eldest child because the son was no longer a child of the marriage when the application was made in November 2007.” (at paragraph 67). The court decided, however, that the 2007 application for arrears was simply a resurrection of an earlier action, and because of this stated, ”I am not persuaded the trial judge lacked jurisdiction to hear the application for increased retroactive and prospective child support for the son even though he was over the age of majority at the time because the application was first made by the respondent when the son was still a child of the marriage.” [at paragraph 70] The moral is that you should at least start any application for arrears before your child stops being defined as such by the Act. Unless the Hartshornes appeal.

Child Maintenance Claims: Can a Payor Claim Legal Fees as a Tax Deduction?

kevin — Wed, 19 May 2010 22:39:29 +0000

Interesting case out of the Tax Court this month: in Trignani v. Canada, [2010] T.C.J. No.141, the court determined that a man who had joint custody of his child but who was paying net maintenance to the children’s mother, was entitled to write of those legal expenses he incurred to pursue his child support claims. In this case, the appellant, Mr. Trignani, was pursuing sole custody of his child, which the court determined to be a bona fide claim.

After the parties’ separation July 2000, they entered into an agreement in August 2000 providing for joint custody and for Mr. Trignani to pay maintenance. The parties filed against each other in spring 2001, each claiming sole custody and child maintenance. The Ontario Superior Court of Justice pronounced a consent order in April 2001 that the parties have equal time with the child (the mother’s access to be supervised) and Mr. Trignani was to pay child support. Notwithstanding this order, for the next five years, Mr. Trignani had the child in his care for the majority of the time.

The court order was was varied in 2006 by Minutes of Settlement which provided for joint custody and for Mr. Trignani to pay child maintenance which appears to have been a set off between his and the appellant’s guideline income obligations.

The tax court held that, despite interim agreements reached by the parties between 2001 and 2006, Mr. Trignani at all material times had a live claim for child support and sole custody. The fact that he agreed to a settlement in 2006 which provided that he pay net maintenance to the respondent did not detract from the viability of his claim prior to that point and did not extinguish his right to claim the monies expended on pursuing his child support claim as a tax deduction.

In cases where joint custody is sought or where sole custody is a reasonable consideration, the tax considerations raised in Trignani v. Canada should be considered when deciding whether to claim child maintenance. This case could have far reaching implications. It remains to be seen whether the decision will be appealed and how the decision will be woven by lower courts into the fabric of Canadian family law.