Child Support On or After Divorce

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 370-503

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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 support payments under agreements or orders made after 

May  are free of tax . ey are not deductible from the taxable income of

the payor, nor are they taxable i n 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 Support

Guidelines requires the court to order t he designated monthly amount of chi ld

support set out in the applicable prov incial table. e table amount of child

 See general ly, Julien D Payne,“Child Suppor t Guidelines – Some L andmark Cases”

(),  Adv Q  .

 SOR/- (Divorce A ct).

Chapter : Child Suppor t On or After Divorce

support is xed accord ing 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

Canada, t he applicable provincial or ter ritorial table is that of t he 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 prov ince or territory wherein the

recipient parent resides. Section () of the Guidelines a lso empowers a court

to order a contribution to be made towards necess ary and reasonable specia l

or extraordinary expenses that are specically listed under section  of the

Guidelines. Alt hough the court has discretion i n ordering section  expenses,

it has no corresponding d iscretion with respect to ordering t he table amount.

It must order the table amount except where the Guidelines or the Divorc e

Act expressly provide otherwise. e onus is on a parent seeking specia l ex-

penses to prove that the claimed expenses fall within one of the categories

and are reasonable and necessa ry.

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  (d Supp), c .

 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  .

  

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 i s sought from a person who is not a biological par-

ent but who stands in 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, generall y, Nicholas Bala, “ Who Is a ‘Parent’?

‘Standin g in the Place of a Parent’ a nd Section  of the Child Support Guidelines” ine