Child Support On or After Divorce
| Author | Julien D. Payne, Marilyn A. Payne |
| Pages | 353-467 |
353
Child Support On or After Divorce
A. GENERAL OBSERVATIONS
Fundamental changes to child support laws in Canada occurred on May
, when the Federal Child Support Guidelines were implemented. ese
Guidelines, as ame nded, regulate the jurisd iction of the courts to order child
support in divorce proceed ings or in subsequent variation proceed ings.
B. INCOME TAX CHILD SUPPORT
Periodic child support payments under agreements or orders made after
May are free of ta x. ey are not deductible from the taxable i ncome of
the payor, nor are they taxa ble 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 deduc tible from the payor’s taxable income and were
taxable as i ncome in the hands of the payee.
C. PRESUMPTI VE RULE; TABLE AMOUNT OF CHILD
SUPPORT; SECTION EXPENSES
In the absence of specie d exceptions, section () of the Federal Child Support
Guidelines requires the cour t to order the designated monthly amount of ch ild
support set out in the applic able provincial table. e table amount of ch ild
support is xe d according to the obligor’s annual income and the number of
children in t he family to whom the order relates. Where t he obligor resides in
SOR/- (Divorce Act).
354
Canada, t he applicable provincial or territorial table is t hat of the province or
territory in wh ich the obligor resides. If the obligor’s residence is outside of
Canada, the applicable table is that of the province or territory wherein the
recipient parent resides. Section () of the Guidel ines also empowers a court
to order a contribution to be made toward s necessary and reasonable speci al
or extraordinary expenses that are specically listed under section of the
Guidelines. Alt hough the court has discret ion in ordering section expenses,
it has no corresponding d iscretion with respect to orderi ng the table amount.
It must order the table amount except where the Guidelines or the Divorce
Act expressly provide other wise. e onus is on a parent seeking special ex-
penses to prove that the claimed expenses fall within one of the categories
and are reasonable and necess ary.
In determining a father’s concurrent obligations to pay court-ordered
support for his two children born of dierent mothers, where neither child
is living wit h 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 memb ers of
the same family unit by using the column in the applicable provincial table
for the total number of children and then dividing the specied amount so
that each chi ld receives an equal share. In ML v RSE, Sul livan J granted two
orders that required the father, whose annua l 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 reect
economies of scale as the number of c hildren residing in the sa me household
increases, but no such economies apply when two children reside in dier-
ent households, Sulliv an J held that, in xing the t able amount 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 addition to the specied section expenses. Given
the obligor’s limited mean s, however, the Alberta Court of Appe al stayed the
monthly payment of chi ld support arrears ordered by Su llivan J, but directed
that the part ies were at liberty to apply to the Court of Queen’s Bench to lif t
the stay in the event of a cha nge of circumstances.
Federal Child Support G uidelines, SOR/- (Divorce A ct), s ( ).
RSC (d Supp), c .
Bhandari v Bhandari, ONSC , cit ing Park v ompson (), OR ( d) (CA).
[] AJ No (CA); se e also Ewing v Mallette, [] A J No (CA).
Chapter : Child Suppor t On or After Divorce355
D. EXCEPTIONS TO PRESUMPTIVE RULE
e presumptive rule endorsing orders for the applicable table amount of
child support m ay be deemed inapplicable in the followi ng circumstances:
t where child support i s sought from a person who is not a biological par-
ent but who stands in the place of a parent;
t where a child is over the prov incial age of majority;
t where the obligor earn s an income of more than ,;
t in split custody ar rangements whereby each parent has custody of one
or more of the childre n;
t in shared custody or access arrangements where a child spends not
less than percent of the yea r with each parent;
t where undue hardship arises and the household income of the party
asserting undue ha rdship does not exceed that of the other household;
t where there are consensual arrangements in place that attract the
operation of sections .(), (), and () or sections (.), (.), and
(.) of the Divorce Act.
E. OBLIGATION OFDE FACTO PARENT
) Relevant Statutory Provisions
e denition of “child of the marriage” in section () of the Divorce Act
reads as follows:
()For the purposes of the de nition of “child of the marr iage” in subsec-
tion (), a child of two spou ses or former spouses includes:
(a)any child for whom t hey both stand in the place of pa rents; and
(b)any child of whom one is the pa rent and for whom the other stands in
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 pre vious marriage, m ay be ordered to support those
children.
A spouse stands in the place of a parent within the meaning of section
() of the Divorce Act when that spouse by his or her conduct manifests an
Chartier v Chartier, [] SCJ No . See, general ly, Nicholas Bala, “W ho Is a ‘Parent’?
‘Standing i n the Place of a Parent’ and Se ction of the Child Suppor t Guidelines” in e
Law Society of U pper Canada, Spe cial Lectures : Fa mily Law (Toronto: Irwin L aw,
) .
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