Child Support on or after Divorce
Author | Julien D. Payne - Marilyn A. Payne |
Pages | 389-544 |
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 specied 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 specica 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 reec 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 denition of “child of the ma rriage” in sec tion () of the Divorce Ac t
reads as follow s:
() For the purpose s of the denition 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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