Child Support on or after Divorce
| Author | Julien D. Payne/Marilyn A. Payne |
| Pages | 281-372 |
CHILD SUPPORTONOR
AFTER DIVORCE
A. GENERAL OBSERVATIONS
Fundamental changes tochi ld support lawsin Canada occurred on May
,whentheFederal Child Support Guidelines were implemente d.
ese Guidelines regulate the jurisdiction of the courts to order child
support in di vorce proceedings or in subseq uent variation proceeding s.
Since M ay , most prov inces and territories have i mplemented
similar guidelines for applicationin child support proceedings instituted
pursuanttoprovincialorterritorialstatute.
B. INCOME TAX CHILD SUPPORT
Periodicchildsupportpaymentsunderagreementsorordersmadeafter
May a re free of tax. ey a re not deductible from t he taxable in-
come ofthe payor,nor are they taxablein the hands of the recipient. is
represents a radica l change from the former income ta x regime which ap-
plied similar criteria to both periodic spousal support and periodic child
FordetailedanalysisoftheFe deral Child Suppor t Guidelines,seedbpdcs(Quick-
law) (Payne’sDigest s onC hild Support Guidelines)andseeJulien D.Payne& Mari
-
lyn A. Payne, Child Support Guidelines in Can ada (Toronto: Irwin Law, ).
CANADIAN FAMILY LAW
supportinthatperiodicpaymentsweredeductiblefromthepayor’stax-
able income and were tax able as income in the hands of the payee.
C. PRESUMPTIVE RULE; TABLE AMOUNT OF
CHILD SUPPORT; SECTION EXPENSES
In the absence of specified exceptions, section ()of the Fed eral Child Sup-
port Guidelines requires the cour t to order the designated monthl y amount
of child support s et out in the applicable provincia l table. e table amount
ofchildsupportisfixedaccordingtotheobligor’sannualincomeandthe
number of child ren in the fam ily to whom the order relates. W here the
obligor resides in Ca nada, the applica ble provincia l or territoria l table is
thatoftheprovinceorterritoryinwhichtheobligorresides.
If the obligor ’s
residence is outside of Ca nada, the applicable table is th atof t he province or
territory where t he recipient parent resides. S ection () of the Guidelines
also empowers a cour t to order a contribution to b e made towards nece s-
sary and reasonable specialor extraordinary expensesthat are specifically
listed under section of the Guidelines. A lthough the c ourt has a d iscre-
tion in ordering section expenses, it has no corresponding discretion with
respect to orderi ng the table amount. It mu st order the table amount except
where the Guideline s or the DivorceAct ex pressly provide otherwise.
D. EXCEPTIONS TO PRESUMPTIVE RULE
e presumptive ru le endorsing orders for the appl icable table amou nt
of child suppor t may be deemed inappl icable in the follow ing circu m-
stances:
i) wherechildsupportissoughtfromapersonwhoisnotabiological
parentbutwhostandsintheplaceofaparent;
ii) whereachildisovertheprovincialageofmajority;
iii) where the obligorearns an incomeof more than ,;
iv) in split custody arra ngements whereby each parent has cu stody of
one or more of the children;
v) insharedcustodyoraccessarrangementswhereachildspendsnot
less than percent of the year with each parent;
Federal Chil d Support Guidelin es,s.().
283Child Support on or after Divorce
vi) where undue hard ship aris es and the household i ncome of the par ty
asserting undue hard ship does not excee d that of the other hou se-
hold; and
vii) wherethereareconsensualarrangementsinplacewhichattractthe
operation of sect ion .(),(), and ()or s ection (.), (.), and (.)
of the Divorce Act.
E. OBLIGATION OF DE FACTO PA R ENT
1) Relevant St atutory Provisions
e definition of “child of t he marriage” in section () of the Divorce Act
readsasfollows:
() For the purposes of the definit ion of“child of the marriage” in sub-
section (),a child of two spouses or former spouses includes:
(a) anychildforwhomtheybothstandintheplaceofparents;and
(b) any child of whom one is the parentand for whom the other stands
intheplaceofaparent.
Adivorcingspousecan,therefore,beorderedtopaychildsupporteven
though he or she is not the biolog ical parent of the c hild. For example , a
divorcingstep-parent,whostands“intheplaceofaparent”tohisorher
spouse’s children from a previous marriage, may be ordered to support
those children.
Aspousestandsintheplaceofaparentwithinthemeaningofsection
() of the Divorce Act when that spouse by his or her conduct man ifests
anintentionofplacinghimselforherselfinthesituationordinarilyoccu
-
pied by the biologica l parent by assuming t he responsibility for provid ing
the child’s economic and parenting needs. Judicial opinion is divided on
the question whether the requisite intention can exist when a husband
who is alleged to be standing in the place of the parent erroneously be-
lieves that he is t he father of the chi ld. In Peters v. Graha m,Boudreau
Chartier v. Chartier,[] S.C.J. No. .
See T.A . v. R.C. A., []B.C.J. No. (S.C.); Aksugyuk v. Aksugyuk (),R.F.L.
(N.W.T.S.C.);compare W. v. W. (),R.F.L.(Eng.).SeealsoBumbacco v. Bum-
bacco, []O.J. No. (S.C.J.); D.R.D. v. S.E.G., [] O.J. No. (S.C.J.); S.E. v.
D.E.,[]S.J. No.(Q.B.). AndseeH.R.v. R.P.,[] O.J. No. S.C.J.) (port ions
of statement of claim for dam ages against wife and a lleged father of child st ruck out).
[] N.S.J. No. (S.C.); see also J.S. v. D.W.,[] A.J. No. (Q.B.).
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