Child Support on or after Divorce

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 389-544

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 

Child Support on or after Divorce

A. GENER AL OBSERVATIONS

Fundamental changes to child support laws in Canada occurred on  May

, when the Federal Child Support Guidelines were implemented. ese

Guidelines, as amended , regulate the jurisdic tion of the courts to order child

support in divorce proceedi ngs or in subsequent variation proceedings.

B. INCOME TAX  CHILD SUPPORT

Periodic child supp ort payments under agreements or orders made aft er  May

 are free of tax. 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 periodic child support in that

periodic payments were deduct ible from the payor’s taxable income and were

taxable as i ncome in the hands of the payee.

C. PRESUMPTIV E RULE; TABLE AMOUNT OF CHILD

SUPPORT; SECTION  EXPENSES

In the absence of specied e xceptions, section () of the Federal Child Sup-

port Guidelines requires the court to order the designated monthly amount

of child support set out in the applicable provincia l table. e table amount

 See, general ly, Julien D Payne, “Chi ld Support Guideli nes — Some Landmark C ases”

()  Ad v Q .

 SOR/- (Divorce A ct).

  

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 ob-

ligor resides in Canada, the applicable provincial or territorial table is that

of the province or terr itory in which the obligor resides. If the obligor’s resi-

dence is outside of Canada, the applicable table is that of the province or

territory wherein t he recipient parent resides. Section () of the Guidelines

also empowers a court to order a contribution to be made towards neces-

sary and reasonable special or extraordinary expenses that are specically

listed under section  of t he Guidelines. Although the cour t has discretion in

ordering section  ex penses, it has no corresponding discret ion with respect

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

the Guidelines or the Divorce Act expressly provide otherwise. e onus is

on a parent seeking spec ial expenses to prove that the c laimed expenses fal l

within one of the categor ies and are reasonable and necessary.

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 w ith the father, section () of the Federal Child Support Guidelines re-

quires the court to sepa rately determine the table amount of suppor t payable

for each child. It is not open to t he court to treat the children as members of

the same family unit by using the column in the applicable provincial table

for the total number of children and then dividing the specied amount so

that each chi ld receives an equal share. In ML v RSE, Sul livan J granted two

orders that required the fat her, whose annual income was ,, to pay the

full table amount of  to each of his two children, in addition to speci-

ed section  expenses. Because the table amounts of child support reect

economies of scale as the number of c hildren residing in the same house hold

increases, but no such economies apply when two children reside in dier-

ent households, Sulliva n J held that, in xing the table amou nt of child sup-

port, 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 determining

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 add ition to the specied section  expenses. Given

the obligor’s limited means, however, the A lberta Court of Appeal st ayed the

monthly payment of child supp ort arrears ordered by Sull ivan J, but directed

 Federal Child Support Guidelines, SOR/- (Div orce Act), s ().

 RSC , c  (d Supp).

 Bhandari v Bhandari, ONSC ,citing Park v ompso n (),  OR (d)  (C A).

 [] AJ No  (CA); see al so Ewing v Mallette, [] AJ No   (CA); WL v NDH,

 NBQB  .

Chapter : Child Suppor t on or after Divorce

that the part ies were at liberty to apply to the Court of Queen’s Bench to lift

the stay in the event of a cha nge of circumstances.

D. EXCEPTIONS TO PRESUMPT IVE RULE

e presumptive rule endorsing orders for the applicable table amount of

child support m ay be deemed inapplicable in the following c ircumstances:

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

parent but who stands i n the place of a parent;

• where a child is over the prov incial age of majority;

• where the obligor earns a n income of more than ,;

• in split custody ar rangements whereby each parent has custody of one

or more of the children;

• in shared custody or access arrangements where a child spends not

less than  percent of the year w ith each parent;

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

asserting u ndue hardship does not exceed that of the other household;

• where there are consensual arrangements in place that attract the

operation of sections .(), (), and () or sections (.), (.), and

(.) of the Divorce Act.

E. OBLIGATION OF DE FACTO PARENT

) Relevant Statutor y Provisions

e denition of “child of the marriage” in section () of the Divorce Act

reads as follow s:

() For the purpose s of the denition of “child of the ma rriage” in subsec-

tion (), a child of two spou ses or former spouses includes:

(a) any chi ld for whom they both stand in t he place of parents; and

(b) any child of whom one is t he parent and for whom the other stands i n

the place of a parent.

A divorcing spouse can, therefore, be ordered to pay child support even

though he or she is not the biological parent of the child. For example, a

divorcing step-parent, who stands “in the place of a parent” to his or her

spouse’s children from a prev ious marriage, may be ordered to suppor t those

children.

 Chartier v Char tier, [] SCJ No . See, generally, Nicho las Bala, “W ho Is a ‘Parent’?

‘Standin g in the Place of a Parent’ a nd Section  of the Child Support Guidelines” inLaw