Can You Legally Create Your Own Child Support Agreement?
By Sheri Ferguson, Senior Family Lawyer, Calgary
In Canada, child support is guided by federal and provincial laws. For married couples, the Divorce Act applies, while the Family Law Act governs support for unmarried couples. Both Acts direct the courts to make child support orders in accordance with the Federal Child Support Guidelines (the “Guidelines”). The Guidelines provide a clear framework for calculating child support, ensuring a consistent and fair standard that allows children to benefit from the financial means of both parents after separation. Child support is the right of the child, meaning it cannot be negotiated away or ignored.
Most people are aware of the Guidelines and understand that they establish the appropriate amount of child support to be paid each month (also known as section 3 child support, but we’ll get into that in more detail later). However, many people experience sticker shock when they see these amounts and feel they don’t fit their particular circumstances, leading to the age-old question, 'Can we make our own deal on child support?
The answer is a qualified “yes”!
How Is Child Support Usually Calculated?
There are two main types of child support, which can be found under section 3 and section 7 of the Guidelines.
Section 3 child support is the basic amount payable. It is the minimum payment one parent pays to the other to cover their child’s basic, day-to-day living expenses.
Section 7 child support covers all the extra things, like extracurricular activities, summer camps, school fees, or medical and dental expenses.
Calculating your base section 3 child support is fairly straightforward. You just need to answer three main questions:
- How many children there are?
- How much money does the payor parent earn (i.e. the parent responsible for paying child support)?
- Where does the payor parent live?
Once you have this information, you can easily determine the basic amount payable by referring to the table provided in the Guidelines.
Crafting a Tailored Child Support Plan
Now that you understand how child support is typically calculated, let’s return to the main point – how you can legally create a customized child support agreement that meets the unique needs of your family?
While the Guidelines provide a standard framework, there is room for flexibility if both parties agree, and if certain factors are carefully considered.
To create a tailored child support plan, it’s important that both parents are fully aligned on the terms and that the arrangement is properly documented to avoid potential legal issues, such as retroactive child support claims. Here’s what to keep in mind:
Documenting the Agreement - Proper documentation is key to ensure both parties are crystal clear on their obligations. This isn’t just a formality; it is about protecting everyone involved and avoiding misunderstandings later on. The agreement should clearly lay out the child support amounts and any agreed-upon changes from the Guidelines.
Reasonableness and Fairness - Whatever arrangement you come up with, it needs to be reasonable and fair. If your arrangement is too far off from what the Guidelines suggest, it might not hold up if things ever go to court. Understand, courts are more likely to uphold agreements that are fair, balanced, and in the best interests of the children.
Deviating from the Guidelines - Flexibility in setting section 3 child support requires mutual understanding and consent. Both parents must be on the same page and willing to agree to terms that differ from the standard Guideline amounts. In legal terms, this is referred to as a “deviation from the Guidelines”. While this deviation is possible, and sometimes even encouraged, it must be done thoughtfully, ensuring the agreed-upon arrangement remains fair and supportive of the children’s well-being.
When a Tailored Child Support Plan Might Be Appropriate
Let’s look at an example involving a hypothetical Alberta family.
Parent A, let’s call her Jenny, earns $100,000 per year. Parent B, let’s call him George, also earns $100,000 per year. They have two children, with a parenting arrangement where Jenny has the children 70% of the time and George has them 30% of the time.
Under section 3 of the Guidelines, George would be responsible to pay Jenny $1,458 per month in child support - intended to cover food, clothing and shelter. Legally, George is only required to pay the $1,458 in monthly section 3 child support. From this amount, Jenny is required to pay for all the children’s regular essentials. George is not obligated to contribute more but must pay this amount even if he spends no time with the children.
However, in this scenario, the children are also in George’s home for a good chunk of the time – 30%, to be exact. George maintains a large enough house for the children when they are with him. On some of the days the children are with George they are in school, so he covers the costs for field trips, school lunch programs, teacher gifts—all those school related “extras” that come up during his parenting time. During George’s weekends with the children, he pays for birthday party gifts, movie tickets, trampoline park admission, and day passes for skiing with friends - those friend and social-related “extras” that come up during his parenting time.
George gladly and willingly supports the children’s success by making generous financial contributions to their clothing, toys, sports equipment, and vacation expenses.
In this example, $1,458 per month might seem like a significant portion of George’s monthly take-home pay.
Options to Address Potential Imbalances
A few options might be available to even out the scales in our example scenario above. Here are two key options:
Option A: It might be more equitable for Jenny to pay 100% of the children’s “extra” or section 7 expenses, such as tutoring or extracurricular activities.
In this scenario, Jenny acknowledges the extra contributions George makes to the overall financial care of the children and appreciates this by taking on some additional expenses.
There is also recognition that the children are with George approximately 30% of the time, and importantly (though this may not apply in all cases), that George is also making regular expenditures on the children’s basic needs to supplement Jenny’s contributions.
Option B: Alternatively, if these “extra” expenses are high, such for daycare or private school tuition is payable, Jenny and George might agree to share these expenses 50/50, as the Guidelines suggest. However, they could apply a proportionate reduction to George’s monthly payment (e.g. $1,458 section 3 child support per month less 30% = $1,020.60 reduced child support payment per month).
The reasoning here is the same as in Option A: the goal is to even out any imbalance for George when both parents are spending regular time and generous amounts of money on the children.
Bottom Line: Cooperation and Reasonableness Are Key
We caution that a flexible result, as outlined in our example, is unlikely if you go to court or arbitration. The Guidelines are, by design, all-purpose and fairly inflexible. When a decision-maker is involved, strict adherence to the Guidelines is far more likely.
However, if both parents recognize the potential drawbacks of a strict Guideline approach, a different arrangement may be possible.
Where A Tailored Approach Fits
It is easy to see how parents often become embroiled in parenting disputes for child support reasons. It would not be surprising if the payor parent, George in our example, argued for more time with the children to achieve a child support arrangement that seems fairer.
In our experience, applying some flexibility when setting child support can soften the edges of parenting disputes. This can lead to a positive outcome for the entire family.
In cases like our example, where there is high cooperation and respect between the parents and adequate financial resources in both households, it is certainly possible to “do your own deal” on child support.
The best approach is to focus on the needs of the children first. Then, set the parenting arrangement based on those needs and consider the financial contributions made by both parents. If there is willingness, the parents can explore options for a fair and balanced child support arrangement. This can help ease the child support sticker shock for one parent and mitigate any resulting bad feelings—for the good of the whole family.
At Crossroads Law, we are dedicated to helping families navigate the complexities of child support arrangements with a focus on cooperation and the best interests of the children. Whether you're looking to create a tailored child support agreement or need guidance on understanding your legal options, our experienced team of family lawyers is here to support you every step of the way. We understand the challenges and emotions involved in these matters and are committed to finding solutions that work for you. Don’t navigate this alone—book a free 20-minute consult today to explore how we can assist you in creating a fair and balanced child support plan that benefits your whole family.
