Child Support on or after Divorce

AuthorJulien D. Payne - Marilyn A. Payne
Pages389-544

 
Child Support on or after Divorce
A. GENER AL OBSERVATIONS
Fundamental ch anges to child suppor t laws in Canad a 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. e y are not deductible from the ta xable income of the
payor, nor are they taxable in t he hands of the recipient. is represe nts a
radical ch ange from the former income ta x regime, which applied si milar
criteria to both p eriodic spousa l support and periodic child support in t hat
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 cou rt to order the designated month ly amount
of child support set out in t he 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 i n the family to whom the order rel ates. Where the ob-
ligor resides in Canad a, the applicable provinc ial or territor ial table is th at
of the province or terr itory in whic h the obligor resides. If the obligor’s resi-
dence is outside of Canada, t he applicable table is that of t he province or
territory wherein t he recipient parent resides. Section () of the Guidelines
also empowers a court to order a contr ibution to be made towards neces-
sary and reason able special or ex traordinar y expenses t hat are specica lly
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 t able amount except where
the Guidelines or the D ivorce Act expressly provide ot herwise. 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 determini ng a father’s concurrent obligations to pay court -ordered
support for his two ch ildren 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 fami ly unit by using the column i n the applicable provinci al table
for the total number of chi ldren and then div iding 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 a mount of  to each of his two c hildren, in addit ion to speci-
ed section  expe nses. Because the table amou nts of child support reec t
economies of scale as the number of c hildren residing in the same house hold
increases, but no such economies apply when two c hildren reside in di er-
ent households, Sulliva n J held that, in xing the table amou nt of child sup-
port, the two ch ildren must be treated as membe rs of distinct fam ily units,
and the two fami lies could not be treated as a sing le unit by determin ing
the table amount payable for two ch ildren and then div iding thi s equally
between the two c hildren. e Al berta Court of App eal found no error in
Sullivan J ’s order respecting the ful l table amount of child supp ort being
payable for each child in add ition to the speci ed section  expen ses. 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 , c iting 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 endorsin g orders for the applicable table amount of
child support m ay be deemed inapplicable in the following c ircumstances:
where c hild support is sought f rom 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 acces s arrangements where a chi ld spends not
less than  percent of the year w ith each parent;
where undue hardship ar ises and the household income of the par ty
asserting u ndue hardship does not exceed that of the other household;
where there are consensual arrangements in place t hat attract the
operation of sections .(), (), and () or sections (.), (.), and
(.) of the Divorce Act.
E. OBLIGATION OF DE FACTO PARE NT
) Relevant Statutor y Provisions
e denition of “child of the ma rriage” in sec tion () of the Divorce Ac t
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 ca n, therefore, be ordered to pay child suppor t even
though he or she is not the biological pa rent of the child. For exa mple, a
divorcing step-p arent, who stands “i n 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” in Law

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