Child support is calculated using the Child Support Determination Form. However, there are circumstances in which one of the parents can ask the judge to increase or decrease the amount of the payments.
This often starts with a disagreement between the parents as a result of the calculation of the amount to be paid as support
It is possible that one of the two parents finds the amount resulting from the calculation by form unrealistic. For example, if the other parent is a shareholder in a company that could pay him a dividend, or if the effects of another pension for another child has a significant impact on the finances of one of the parents.
The criteria that a judge will consider in agreeing to increase or decrease the amount of child support include:
If one of the parents:
- owns valuable assets, such as shares of a company;
- has become indebted for the needs of the family;
- pay another child support, for example, for a child from another union or another former spouse;
- must pay a special fee to see his children, for example if he has to fly to get to them;
- must spend additional amounts of money because the other parent does not exercise his custody rights. This is the case for example if the mother does not take the children every two weeks as provided for in the judgment;
6. If the child for whom maintenance is claimed has its own financial means;
It must be understood that the judge is not required to mechanically apply these criterias. He has great discretion to agree to increase or decrease the amount of support.
The wish of a child is taken into consideration when the judge decides how to assign custody and access rights. A parent may be blamed for acting irrespective of what the child wants after separation.
Of course, the age and maturity of the child will influence the weight that the judge will give to his will. For example, a 12-year-old child can decide on the choice of his family environment without this choice being automatically followed. On the other hand, the will of a child of 17 years will be very determining in the choice of the custodial parent, while the wish of a child of 4 years will have practically no weight.
The parent must avoid “contaminating” the child’s perception by demonizing the other parent, which could be considered parental alienation.
Important decisions concerning the children must be made by the TWO parents, regardless of the mode of custody that exists (shared custody, sole custody). For example: education, place of residence, medical care, religion, choice of school are all elements included in parental authority. If a parent decides to exercise parental authority unilaterally without the consent of the other parent, the other parent may apply to the court for an order to vary the decision to which he has not consented. The court will then make the decision that is in the best interest of the child.
The #1 criterion considered by the judge determining the attribution of a child’s custody is the best interest of the child. The stability of the child, in the context of rupture, is therefore important: its environment, room, school, friends, etc.
1) If you are thinking about leaving your home with your children on a whim, be aware that you could instead apply for an order from the Court authorizing you to remain in the family home instead of your (ex) spouse, and so , preserve the stability of the child and avoid disorganization.
2) Think before you leave de facto custody of children to the other spouse at the time of breakup, believing that this will not impact any of your custody rights at the end of the process. The Court may consider that the situation of children with your spouse is stable and therefore favour the maintenance of this situation.
To know your rights, it is better to consult a lawyer before or shortly after a breakup.
We represented the plaintiff who requested custody and alimony.
Our client requested interim shared custody even though she lived in New Brunswick and the child was in Quebec. Continue reading “Shared custody granted even if the mother lives in another province”
Madame had signed a final consent a few years ago to have shared custody with the child’s father as follows:
– The father had the child every weekend and while the mother had the child during the week.
The client met Mr. Vallelonga following the birth of another child with another spouse and saw that the minor child started school. Our client felt she had no quality time with the child. Continue reading “Our client obtains the modification of the guard despite opposition from the opposing party”
The first steps are identical to those for a challenged request: one of the parties shall draft a request for child custody, sign it, have it sworn in and serve a certified copy to the other party along with a subpoena. These documents shall be submitted to the Court Clerk along with proof of a subpoena served by a bailiff to the other party. Before the date of the hearing, one of the parties shall draft a consent statement, that is a document that states the terms of the custody and the alimony for child custody. Continue reading “Unchallenged request for child custody”
The child custody and alimony request begins with drafting an application instituting proceedings. This request describes the various arguments justifying the type of custody required. The application is executed and sworn by the party.
The family lawyer submits this document to the Court. A date is then set for trial. Continue reading “Legal procedure for child custody and child support”
A father had total custody of his 4 year old child since his recent separation from the mother. However, without any agreement between the parties, the mother went to pick up the child at the daycare centre and refused to let the father see his son. She also lodged a complaint to the Director of Youth Protection, alledging that the father had sexually abused his son. Continue reading “Since sexual abuse allegations were deemed unfounded, the Court gave custody to the father”
In the St-Jérôme district, the Superior Court had granted custody of a 7 year old child to the child’s mother and access rights of every other weekend to the child’s father. An anonymous signaling to the Director of Youth Protection was done to denounce a parental conflict situation that could jeopardize the child’s safety and development. Continue reading “Child custody granted to the father because of parental alienation”
In the district of St-Hyacinthe, Mrs. Veronica Vallelonga acquired for her client, the father, interim shared custody of his 2 and 4 year old children. The mother had requested from the Court exclusive custody for herself. The parties had separated following a complaint of the mother against the father, alleging he had committed criminal offences against her. Continue reading “The Superior Court granted the father shared custody despite criminal charges”
When parents are separated, both have to keep providing for their children’s needs. The child support amount quantifies the respective alimony owed by each parent.
If the couple was married, the divorce decree shall regulate the child support. If they were not married, child suppport may be requested at the same time as the custody order, at any time after the breakup of the family. Child support may also be requested retroactively after the petition.
Already set child support may be revised if it appears that the child’s needs or the parents’ respective situations have changed dramatically – for instance, if an adult child is no longer supported by the parent receiving child support, if either parent has a job that pays substantially more or less, or also if a parent has new maintenance obligations for children born out of a second relationship. Our lawyers can help you request a child support revision if you are in this situation. Continue reading “Child support”
Two common law spouses separated several years ago. Custody of the child born out of this relationship had always been shared equally according to the settlement out of court between the two parents.
Suddenly, the mother refused to give back the child to the father lest he have custody as usual. She applied to the Montreal Superior Court for a decision that would give her exclusive custody of the child. She also requested that the father’s visiting rights be exercised in supervised centers. Continue reading “The opposite party failed to put an end to shared custody in the interim”
When joint custody is not possible or is not in the best interests of the child, it is always still possible for the parent who does not have custody to have visiting rights. These rights can work out in any way that suits the child: it may be mere phone calls, visits in the home of the custodian parent, going for walks, having the child over for a week end or going on vacation with the child. Continue reading “Visiting rights”
Parental alienation is a process by which one of the parents ruins the relationship between the child and the other parent in different ways: criticizing the other parent, frivolously complaining against the other parent, reproaching them without a basis in fact, shamelessly lying to the offspring about the other parent’s behaviour, illegally or abusively depriving the child of contact, emotionally bribing the children to force them to choose between the parents, etc. The purpose of parental alienation is to convince the child that the other parent is the enemy and lead the child to want to put an end to all contact with this person. Continue reading “Parental Alienation”