Chapter 9: Child Support on or After Divorce

• Date: 14 April 2025

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 

Child Support on or After Divorce1

A. GENERAL OBSERVATIONS

Fundamental changes to child support laws in Canada occurred on 1 May 1997, when the Fed-

eral Child Support Guidelines2 were implemented. ese Guidelines, as amended, regulate the

jurisdiction of the courts to order child support in divorce proceedings or in subsequent varia-

tion proceedings.3 In Premi v Khodeir,4 constitutional challenges to the obligor’s income model

 is chapter focuses on fundamental aspects of the law governing child support . Judges, legal practitioners,

and other family dispute resolution specialists will need to examine the far more comprehensive analysis in

Julien D Payne & Marilyn A Payne, Child Support Guidelines in Canada, 2024 (Toronto: Irwin Law, ).

 SOR/- [Divorce Act].

 As to interjurisdictional support orders, see ss – of the Divorce Act; see also ss –. of the

Divorce Act whereby the provisions of the Convention of 23 November 2007 on the International Recovery

of Child Support and Other Forms of Family Maintenance ( Hague Child Support Convention) have

the force of law in Canada insofar as they relate to subjects that fall within the legislative competence of

Parliament. As to the implementation of the Convention of 19 October 1996 on Jurisdiction, Applicable

Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for

the Protection of Children, see the Divorce Act, ss –. And see John-Paul E Boyd, “A Brief Overview

of Bill C-, An Act to Amend the Divorce Act and Related Legislation; Part: Amendments Relating

to Interjurisdictional Agreements and Treaties” (June ), online: Canadian Research Institute For

Law and the Family https://afccontario.ca/wp-content/uploads///Boyd-Overview-of-Bill-C-Pt-

-June-.pdf; Department of Justice, Canada, “e Divorce Act Changes Explained: Par t II,” online:

Department of Justice, Canada www.justice.gc.ca/eng/-df/c-mdf/dace-clde/index.html. e 

Hague Child Support Convention came into force for Canada and applies to the provinces of Manitoba

and Ontario on  February , and to British Columbia on  March . It is expected that the Con-

vention will be progressively implemented in other provinces and territories in Canada: see Department

of Justice, Canada, “Enforcement of Child and Spousal Support Payments Between Provinces, Territories

and Countries,” online: www.justice.gc.ca/eng/-df/enforce-execution/enforce-execut.html. See also

Ontario FRO website and the Hague Conference on Private International Law website, sub-heading

“Child Support,” online: HCCH.net; and see Andina van Isschot& Annick Boulay, “Strengthening Family

Justice Services: Recent Changes to the Family Orders and Agreements Enforcement Assistance Act and

Canada’s Implementation of the  Hague Child Support Convention” (County of Carleton Law Asso-

ciation, rd Annual Institute of Family Law,  April , Montebello, Quebec).

 [] OJ No  (SCJ).

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2   

under section 26.1(2) of the Divorce Act and sections 2(b) and 15(1) of the Canadian Charter

of Rights and Freedoms were judicially rejected. And in Auer v Auer, the Supreme Court of

Canada was called upon to determine whether the Governor in Council acte d within the

scope of its delegated authority in establishing the Federal Child Support Guidelines.

B. INCOME TAXCHILD SUPPORT

Periodic child support payments under agreements or orders made after 1 May 1997 are free

of tax.5 ey are not deductible from the taxable income of the payor, nor are they taxable

in the hands of the recipient. is represents a radical change from the former income tax

regime, which applied similar criteria to both periodic spousal support and p eriodic child

support in that periodic payments were deductible from the payor’s taxable income and were

taxable as income in the hands of the payee.

C. PRESUMPTIVE RULE; TABLE AMOUNT OF CHILD SUPPORT;

SECTION  EXPENSES

In the absence of specied exceptions, section 3(1) of the Federal Child Support Guide-

lines requires the court to order the designated monthly amount of child support set out in

the applicable provincial table. e table amount of child support is xed according to the

obligor’s annual income and the number of children in the family to whom the order relates.

Where the obligor resides in Canada, the applicable provincial or territorial table is that of

the province or territory in which the obligor habitually resides.6 If the obligor’s residence

is outside of Canada, the applicable table is that of the province or territory wherein the

recipient parent habitually resides. Section 3(1) of the Guidelines also empowers a court to

order a contribution to be made towards necessary and reasonable special or extraordinary

expenses that are specically listed under section 7 of the Guidelines. e list of spec ial and

extraordinary expenses under section 7(1)(a) to (f ) of the Guidelines is exhaustive.7 Although

the court has discretion in ordering section 7 expenses, it has no corresponding dis cretion

with respect to ordering the table amount. It must order the table amount except where the

Guidelines or the Divorce Act8 expressly provide otherwise.9 e onus is on a parent seeking

special expenses to prove that the claimed expenses fall within one of the categories and are

reasonable and necessary.10

In determining a father’s concurrent obligations to pay court-ordered support for his two

children born of dierent mothers, where neither child is living with the father, section 3(1)

of the Federal Child Support Guidelines requires the court to separately determine the table

amount of support payable for each child. It is not open to the court to treat the children as

members of the same family unit by using the column in the applicable provincial table for the

 See Julien D Payne & Marilyn A Payne, Child Support Guidelines in Canada, 2024 (Toronto: Irwin Law,

) ch , Section B.

 Federal Child Support Guidelines, SOR/- (Divorce Act), as amended, s ().

 Vidal v D unn,  ONSC .

 RSC , c  (d Supp).

 PLC v CG,  ABQB .

 Bhandari v Bhandari,  ONSC , citing Park v ompson (),  OR (d)  (CA); Vidal v

Dunn,  ONSC  (criminal defence expenses ineligible).

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Child Support on or Afte r Divorce 3

total number of children and then dividing the specied amount so that each child receives

an equal share. In ML v RSE,11 Sullivan J granted two orders that required the father, whose

annual income was $22,900, to pay the full table amount of $203 to each of his two children,

in addition to specied section 7 expenses. B ecause the table amounts of child support reect

economies of scale as the number of children residing in the same household increases, but

no such economies apply when two children reside in dierent households, Sullivan J held

that, in xing the table amount of child support, the two children must be treated as members

of distinct family units, and the two families could not be treated as a single unit by deter-

mining the table amount payable for two children and then dividing this equally between the

two children. e Alberta Court of Appeal found no error in SullivanJ’s order respecting the

full table amount of child support being payable for each child in addition to the specied

section 7 expenses. Given the obligor’s limited means, however, the Alberta Court of Appeal

stayed the monthly payment of child support arrears ordered by Sullivan J, but directed that

the parties were at liberty to apply to the Court of Queen’s Bench to lift the stay in the event

of a change of circumstances.

D. EXCEPTIONS TO PRESUMPTIVE RULE

e presumptive rule endorsing orders for the applicable table amount of child support may

be deemed inapplicable in the following circumstances:

• where child support is sought from a person who is not a biological parent but who

stands in the place of a parent;

• where a child is older than the provincial age of major ity;

• where the obligor ear ns an income of more than $150,000;

• where there are two or more children and each parent exercises the majority of par-

enting time with one or more of those children;

• in shared parenting time arrangements where a child spends not less than 40 percent

of the year with each parent;

• where undue hardship arises and the household income of the party asserting undue

hardship does not exceed that of the other household;

• where there are consensual arrangements in place that attract the operation of sections

15.1(5), (7), and (8) or sections 17(6.2), (6.4), and (6.5) of the Divorce Act.

E. OBLIGATION OF DE FACTO PARENT

1) Relevant Statutory Provisions

e denition of “child of the marriage” in section 2(2) of the Divorce Act reads as follows:

2 (2) For the purposes of the denition of “child of the marriage” in subsection (1), a child of

two spouses or former spouses includes:

 [] AJ No  (CA); see also Ewing v Mallette, [] AJ No  (CA); WL v NDH,  NBQB ;

Soleimani v Melendez,  ONSC .

 See Julien D Payne & Marilyn A Payne, Child Support Guidelines in Canada, 2024 (Toronto: Irwin Law,

) ch , Section J: Persons Standing in Place of Parents.

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