When he wants a divorce

Who gets custody and who pays child support?

By Alice Popovici

Ann and Dave have been married for 20 years. They have two children—Carmen is now 10, and Matthew is 6. Ann is well educated, having obtained a degree in accounting before having their first child. After the birth, Ann and Dave agreed that Ann would stay home and care for their kids until they reach high-school age. She has been unemployed for over 10 years. Dave is a technician for a large communications company and earns approximately $100,000 per year.

Dave recently told Ann he wanted a divorce. He said the separation was a direct result of her lack of emotional involvement and commitment to the relationship. Nevertheless, Ann was convinced that Dave had been having an affair and that the affair was the only reason he wanted to separate. When she confronted him about it, he repeatedly refused to acknowledge the affair. It has only been a few days since Dave admitted to the affair and yet he continues to work late, to be evasive and hides his cell phone when at home.

What happens to Ana and the children? Who will get custody, and how is child support calculated? Will she be forced to go back to work? These are common questions people in a similar situation ask themselves. Here is what she is facing:

Custody

The laws in our province provide that every decision concerning a child is made in his/her best interest. The court will evaluate several factors to determine who gets custody after a separation. Another consideration is the child’s age and wishes if he/she is old enough to express their wishes. A parent can be awarded either sole custody, or shared custody.

One of the most important factors is determining the child’s primary caregiver, and who can provide the child with stability and consistency.

Child Support

How is child support calculated, and when does it end? In Quebec, the laws provided for a specific calculation for child support, which is based on a specific form called the Child Support Determination Form. The calculation is based on the gross income of both parents and the custodial arrangement.

In the case of Ann and Dave, if they agreed to, or the court ordered, shared custody of the children, Dave would be paying Ann child support since his income is higher. If the scenario was different and Ann had a similar income to Dave, then there would be no child support payable. Each situation and calculation is different, and is based on the parents’ income and custodial arrangement.

Where a parent’s income is contested, there are several recourses available to the other parent, namely an out of court examination, request of additional financial documents, expert analysis, and more. This often occurs when one parent is self-employed or manages several companies.

In addition to child support, parents can be ordered to assume a specific portion of the child’s extraordinary expenses.

This includes daycare fees, extra-curricular activities such as day camp, sports camps and private school. Generally, both parents must agree to the expenses before they are incurred in order to be eligible for reimbursement.

Can Dave force Ann to return to the job market and earn an income immediately? Not necessarily. However, the law provides that if a person is purposely underemployed, they can attribute them an income for the purposes of calculation of child support. This means that the Court can order that Ann be attributed an income of $50,000 (based on her education and work experience) even though she is not working and has not done so in many years.

Lastly, does Dave’s affair have an impact on custody or child support? Not really. Although adultery is one of three reasons a spouse can seek a divorce, adultery itself does not necessarily have an impact on one’s parental capacity or child support calculation. Adultery can be important if it has an impact on that parent’s availability to the child during the marriage.

Knowing your rights and obligations in this type of situation is crucial. It is essential to seek appropriate representation to properly protect your future and that of your children!

Image: Guido Appenzeller via StockPholio.com

Alice Popovici is a Montreal lawyer who practices family law. She can be reached at (514) 228-8808 ext. 680 or at alice@popovicifamilylaw.com