E. Application of Federal Child Support Guidelines; Provincial Legislation; Foreign Divorces

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 13-17

Contenidos

• 1) Orders Governed by Federal Child Support Guidelines.
• 2) Provincial Guidelines.
• 3) Extramarital Children; Disputed Paternity.
• 4) Foreign Divorces; REMO applications.

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1) Orders Governed by Federal Child Support Guidelines

The Federal Child Support Guidelines not only apply to original permanent orders for child support under the Divorce Act; they also apply, with such modifications as the circumstances require, to interim orders under sections 15.1(2) and 19(9) of the Act, to orders varying a child support order, to provisional orders under section 19(7) of the Divorce Act, and to recalculations of child support under section 25.1 of the Divorce Act.⁵⁷

2) Provincial Guidelines

The Federal Child Support Guidelines are not directly applicable to child support proceedings instituted pursuant to provincial or territorial statute.

Alberta, British Columbia,⁵⁸New Brunswick, Newfoundland, the Northwest Territories,⁵⁹Ontario, Prince Edward Island⁶⁰and Saskatchewan have all adopted or slightly modified the Federal Child Support Guidelines for application in child support proceedings initiated pursuant to provincial legislation. Quebec adopted its own guidelines on May 1, 1997. Both Prince Edward Island and Quebec have been designated so that their provincial guidelines apply in proceedings under the Divorce Act as well as proceedings under provincial legislation. The Federal Child Support Guidelines, not the Quebec Child Support Guidelines, apply where the obligor is resident outside Quebec.⁶¹Because the Federal Child Support Guidelines provide far more generous child support payments than the Quebec Child Support Guidelines which are modelled on the income of both parents,the provincial Guidelines are currently being challenged under section 15 of the Canadian Charter of Rights and Freedoms.⁶²In Ontario, the Uniform Federal and Provincial Child Support Guidelines Act, 1997,⁶³ came into force on December 1, 1997. As its name indicates, it seeks to establish uniformity

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concerning the application of federal and provincial guidelines in proceedings under the Divorce Act⁶⁴and under the Ontario Family Law Act.⁶⁵

The Federal Child Support Guidelines were adopted in Saskatchewan pursuant to The Family Maintenance Act, 1997,⁶⁶which came into effect on May 1, 1997.

As of May 1, 1998, orders made pursuant to New Brunswick’s Family Services Act must comply with the Federal Child Support Guidelines.⁶⁷New Brunswick adopted the Federal Child Support Guidelines with two minor amendments relating to the time for filing income information and the amount of income information required on consent.

Manitoba implemented child support guidelines as of June 1, 1998 when The Family Maintenance Act, which establishes a statutory framework and the Child Support Guidelines Regulation thereunder, came into effect. The Manitoba Child Support Guidelines apply to claims for child support under The Family Maintenance Act⁶⁸or, where both parties are resident in Manitoba, under the Divorce Act.⁶⁹The Federal Child Support Guidelines, not the Manitoba Child Support Guidelines, apply where the respondent is ordinarily resident outside Manitoba.⁷⁰The Manitoba legislation resembles the Divorce Act child support provisions. In addition, the Manitoba legislation contains provisions requiring parents to provide financial disclosure on request, without the need for a court application for support having first been made. Non-compliance may result in a fine of up to $5,000 in addition to any other penalties. The Manitoba Child Support Guidelines Regulation essentially replicates the Federal Child Support Guidelines, although there are some significant differences.⁷¹For example:

1. Only the custodial parent will be able to claim special expenses.

2. The Manitoba regulation makes it clear that the court can estimate the amount of special expenses and that the court must order a set amount, not a proportion of an amount not yet determined. In addition, the court need not specify the particular expenses to be covered by the amount ordered. Instead the order will merely have to identify the category of expense (that is, the clause of section 7 under which the order is made) and the child or children to whom the expense is related.

3. The income determination section in the provincial regulation focuses on what income the parent is likely to receive in the current year and thus on the parent’s ability to pay in the current year.

4. The Manitoba regulation simplifies and expedites the process of obtaining an order of financial disclosure and penalties for non-compliance.

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5. The Manitoba regulation does not require parents to file as much financial information with the court as the federal regulation does. Instead it requires parents to provide all the information to the other parent on request, and also gives the court the ability to order filing of the information. The information that must be filed with the court in all circumstances by a party whose income information is necessary is limited to a sworn financial statement and Revenue Canada computer printouts for the three most recent taxation years.

6. The federal government has been...