Child Support On or After Divorce
| Author | Julien D. Payne, Marilyn A. Payne |
| Pages | 370-503 |
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 m ade 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 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 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, t he 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 extraordina ry expe nses 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 Guide lines or the Divorc e
Act expressly provide ot herwise. e onus is on a parent see king specia l ex-
penses to prove that the cl aimed expen ses fall within one of the categories
and are reasonable and necessa ry.
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 specied s ection expenses. Give n
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 , 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 .
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 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 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, 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
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