As a general rule, the Quebec model applies to all parents residing in Quebec and all applications for child support or review made since May 1, 1997.

As for the federal system, it applies in Quebec only if the following two conditions are met:

• the application for child support is made during divorce proceedings; and
  
• one of the parents does not reside in Quebec.

For more information on the federal system, see the Infosheet entitled The federal method of calculating child support.

A “Child Support Determination Form” is available to help you with your calculations. The Quebec model takes into account both parents’ income and resources. Expenses related to children’s needs are then proportionally divided between them. Here are the elements that are included in the form:

• the parents’ income and resources;
  
• the number of children;
  
• the basic annual parental contribution;
  
• child care expenses;
  
• post-secondary education expenses;
  
• special expenses;
  
• type of custody and access rights;
  
• custody time;
  
• the child support paid to other children apart from those in the application for support.

The form is divided into several parts:

• in the first part, the parents and children are identified;
  
• in the second, the parents’ income is determined;
  
• in the third, each parent’s disposable income is determined for purposes of child support calculations;
  
• in the fourth, the parents’ annual contribution is established;
  
• in the fifth, child support is calculated on the basis of custody and access rights;
  
• in the sixth, the debtor’s capacity to pay is established, as the child support cannot exceed 50% of his disposable income;
  
• in the seventh, the parents describe their agreement on the amount of child support;
  
• in the eighth, the frequency of the child support payments is determined;
  
• in the ninth, each parents’ assets and liabilities are listed;
  
• finally, the last part contains the parents’ signatures and affidavits.

You should note that a new determination form has been in force since January 1, 2004. The sections described above are those in the new form. Since some changes were made, it is important to check which form you have. Applications started before this date must be done using the old form, but all applications after January 1, 2004 must be done using the new form. Make sure to get the one that reflects your situation!

You can get a copy of the form and the table of the basic parental contribution (explained below) in the following places:

• offices of Communication-Québec;
  
• courthouses;
  
• offices of professionals such as lawyers or certified mediators;
  
• Justice Québec website.

First of all, the model looks at annual gross income (before tax) for the current year. The income considered is that of both parents.

In Part 2 of the form, you will find a non-exhaustive list of possible income sources. It includes:

• salary;
  
• commissions;
  
• tips;
  
• business income;
  
• self-employment income;
  
• employment insurance benefits;
  
• retirement or disability benefits, or other benefits;
  
• interest, dividends, and other investment income;
  
• net rental income.

If necessary, the court has discretion to establish a parent’s income itself – for example, when the parent has undeclared income (under-the-table income) or has decided to take an unpaid leave.

Certain amounts are not considered as income for the purposes of determining child support. These include:

• child tax benefits (family allocations);
  
• GST credits;
  
• last resort financial assistance benefits (welfare);
  
• benefits granted under the Parental Wage Assistance (APPORT) program;
  
• loans and bursaries under a student financial assistance program managed by the Ministère de l’Éducation.

The basic annual parental contribution aims to cover the following children’s needs:

• food;
  
• housing;
  
• communications;
  
• housekeeping;
  
• personal care;
  
• clothes;
  
• furniture;
  
• transport;
  
• hobbies.

The amount of this contribution depends on the parents’ income and the number of children.

The Regulation respecting the determination of child support payments contains, as an attachment, a table setting out the basic annual parental contribution, by income and number of children. For example, for the year 2004, the basic annual parental contribution was the following:

• $2500 for two children whose parents had total disposable income from $4001 to $5000;
  
• $6800 for a child whose parents had total disposable income from $50,001 to $52,000;
  
• $16,650 for three children whose parents had total disposable income from $80,001 to $82,000.

As you can see, the amount varies a lot depending on the financial situation of the parents and the number of children.

Child care costs are those that the custodial parent has to pay:

• when she is at work;
  
• when she is at training courses for employment purposes;
  
• if she has health problems.

So these are not costs for child care during leisure time, which is included in the basic contribution. Also, it is necessary to calculate net child care costs, i.e. minus any tax credits and exemptions attached.

There is software that can help you calculate net cost. You can also ask a professional to do the calculations for you.

These are costs incurred to meet a child’s specific needs. These costs have to be reasonable, given the parents’ income and circumstances.

To convince the court to increase the support in view of special costs, you have to show that they are necessary and reasonable.

Since May 1, 1997, the courts have rendered many judgments on the question of special costs. Here is what they decided in the following cases:

• extracurricular activities (like ballet, theatre): they will not be considered special costs unless the cost exceeds that of “hobbies”, already included in the basic annual contribution;
  
• sports activities (like hockey): they may be considered special costs if both parents encouraged the activity, if the cost exceeds that of a simple hobby and if the parents have the means to pay these costs;
  
• pocket money: this is not recognized as being a special cost;
  
• music classes: the Court of Appeal, referring to data from Statistics Canada, concluded that families spend about 5% of their budget on hobbies and decided to include in special costs the price of music classes going over this 5%;
  
• make-up courses: they are special costs;
  
• food and care for a dog: these are not recognized as special costs;
  
• medical costs: the portion that is not reimbursed by medical insurance has been allowed under special costs; orthodontist costs are generally allowed;
  
• private school: this is considered to be a special cost if it is the result of the parents’ mutual decision or if it is shown that it is related to the children’s specific situation; the parents also have to have the means to pay;
  
• clothes: they are not recognized as special costs;
  
• trips: they are not considered to be special costs.

As you can see, all sorts of expenses can fall into the definition of special costs, but they are not automatically allowed as such. It is important to show that an expense is necessary and reasonable, and not just desirable. For example, many parents would like to provide their child with a private school education, but a court will not allow such a request if it is beyond the parents’ means.

Moreover, before one parent incurs such an expense, it is a good idea to talk things over with the other parent. Remember that the non-custodial parent keeps his parental authority and still has some say. So if the custodial parent makes a decision by herself, without talking to the other or despite his disagreement, she risks having to shoulder the whole cost herself. For more information on this topic, see the Infosheet entitled Parental authority.

When we talk about custody, we mean custody involving minor children. Custody is no longer an issue when a child reaches majority, even if he is still in the care of his parents.

Since January 2004, the following types of custody can be found in the form:

• sole custody: the custodial parent has 80% or more of the custodial time;
  
• adjustment for visiting and prolonged outing rights: the amount has to be adjusted in cases of sole custody if the non-custodial parents has visiting and outing rights amounting to 20 to 40% of custodial time;
  
• sole custody given to both parents: if there are two or more children, each parent may get sole custody (80% or more of the time) of at least one child;
  
• shared custody: this is a situation in which each parent assumes at least 40% of custody time;
  
• sole custody and shared custody: if there are two or more children, one parent might have sole custody of at least one child, while both parents have shared custody of at least one child;
  
• sole custody and sole custody with visiting and prolonged outing rights: if there are two children whose sole custody is held by the same parent, and the other parent enjoys visiting and prolonged outings rights for at least one of the children;
  
• shared custody and sole custody with visiting and prolonged outing rights: when the parents have shared custody of at least one child, and at least one parent has sole custody of one or more other children while the other parent has visiting and prolonged outing rights for at least one of his other children;
  
• shared custody, sole custody, and sole custody with visiting and prolonged outing rights: if the parents share custody for at least one child, at least one parent has sole custody of one or more other children, and the other parent enjoys visiting and prolonged outing rights for at least one of the other children.

How is custody time calculated under the law? The courts have given different opinions on this subject, but the Court of Appeal has settled things: all hours are counted, with adjustments made if the time a child spends with a parent does not involve any actual expenses.

Custody time is therefore a key factor in calculating support. The more that a non-custodial parent exercises his visiting rights, the less support he will have to pay.

Under sole custody, the parent who has visiting rights takes care of the child’s basic needs, like food and shelter, while the child is with him.

In situations of prolonged access rights (between 20 and 40 % of time) and shared custody (40% and more), support is adjusted to take into account the additional expenses for the parent who is paying support. However, the parent also has to pay his share of the child’s other expenses, like clothes and child care costs. For example, a parent who has 50% shared custody of his child must pay half of the child’s clothing expenses and custody costs in addition to the support he is paying.

The different types of custody can be quite confusing, especially when more than one child is involved. It is therefore recommended to get the advice and assistance of a lawyer.

The calculation of support for children over the age of majority may be done following the Quebec tables. However, a judge has the right to award an amount of support that is different than the level indicated by the tables if she believes that it would be more appropriate.

Here are some of the factors that the judge will consider when she is deciding whether the table amount is appropriate for the major child:

• the major child’s income;
  
• student bursaries he can obtain;
  
• the type of studies he is pursuing;
  
• his state of health;
  
• costs;
  
• parents’ means and level of education;
  
• any other factor that the judge sees fit

To find out more, see the Infosheet entitled Support payments for an adult child.

The law gives the parents the right to agree to a different amount, but they have to justify why they came to such an agreement. The court might refuse it if it decides that it is unreasonable.

The issue is especially sensitive when the custodial parent is on welfare: since the support payments are taken off his cheque, it might be tempting to agree with the other parent to a minimum amount, as long as the non-custodial parent gives an additional amount from time to time or pays some of the children’s expenses directly. This is not allowed: not only do you risk problems with the authorities, but chances are that such an agreement would not be allowed by the court.

In any case, you still have to fill out the form and explain your reasons for setting another amount. These reasons might relate to “undue hardship”, or perhaps a special agreement on direct payment of certain costs.

The important thing is to clearly explain your reasons. Obviously, if the agreed payments are higher than that indicated in the form, it will be much easier to have the agreement approved than if the payments are lower.

If one of the parents thinks that the amount of support will cause him “undue hardship”, he can ask the court for a reduction or increase in the amount.

The law sets out certain cases that might involve undue hardship:

• costs related to the exercise of visiting rights: for example, if the parents live far away from one another;
  
• other support obligations: for example, if one of the parents has custody or care of a child from another union;
  
• debts contracted to meet family needs: for example, if one of the parents ends up paying the entire amount of a debt that was contracted to meet the family’s needs while the couple was still together.

The courts have also had to rule on other circumstances:

• failure to exercise access rights: in certain cases, additional costs are recognized for the custodial parent if the other parent never takes the children;
  
• maintaining a certain standard of living: in some review applications involving support payments that were set before the new rules kicked in, the amount was increased to avoid penalizing the children;
  
• a parent’s low income: sometimes, a parent’s contribution would be so tiny that the court decides not to consider it.

To convince the court to decrease or increase the support, it must be shown that applying the form would truly result in undue hardship. This does not just mean that you would have to adjust your lifestyle a little bit; it means you would not be able to pay the amount or would not be able to make ends meet.

In addition to the parents’ income, the court will also look at their assets: it is especially for this reason that the form contains a part where the parents’ assets and liabilities have to be listed. The court can also consider the child’s personal resources (for example, an inheritance).

In the introduction to Part 2 of the form, it says that you have to attach a copy of your federal and provincial income tax returns and assessment notices for the last year.

As for salary, you have to attach a recent pay slip. In cases of business income and self-employment, you have to provide financial statements.

For rental income, you have to attach a statement of income and expenses for the building.

If a parent receives a request for support and agrees with the amounts indicated in the form by the requesting parent, he does not have to provide all these documents. But if he challenges the amounts, he has to fill out his own form and attach all the required documents.

Whether you’re paying or receiving child support established before May 1, 1997, the new rules do not automatically apply to you: you have to present an application for review to be subject to the new rules.

One of the main differences between the old and new system is the tax implications of the support. Before May 1, 1997, they were deductible for the payer and taxable for the beneficiary. Chances are good that these tax implications were considered when the support was determined in your file.

It is therefore a good idea to check with a professional to find out whether or not the new rules of 1997 would be advantageous for you.

Moreover, an application for review is not automatically granted. The court may reject such a request, for example, if the application of the new rules would have little impact or would penalize the children.

As for the changes to the regulation that came into force in January 2004, it might be a good idea to consult your legal advisor about this. The new regulation now covers more custody arrangements, and may therefore better reflect your family situation.

It is true that the child support determination process has been simplified. As a result, many people are tempted to make their application to the court alone, without a lawyer, and this is entirely within their right.

However, even if the determination form looks pretty simple at first glance, the amount of support may vary depending on the specific situation of every couple. It is therefore recommended to at least ask a family law expert to check over your calculations.

For more information on the steps in the procedure, see the Côtécour section entitled Superior Court: Family Division.