Child Support on or after Divorce
| Author | Julien D. Payne/Marilyn A. Payne |
| Pages | 353-473 |
CHILD SUPPORT ON OR
AFTER DIVORCE
A. GENERAL OBSERVATIONS
Fundamental changes to child support laws i n Canada occurred on
May , when the Federal Child Support Guidelines were i mplemented.
ese Guidelines, as amended, regulate the jurisdiction of the courts to
order child suppor t in divorce pro ceeding s or in subsequent variation
proceedings.
Since May , most provinces and territories have implemented
similar gu idelines for application in child support proceedings instituted
pursuant to provincial or territor ial statute.
B. INCOME TAX CHILD SUPPORT
Periodic child support payments under agreements or orders made af ter
May are free of tax. ey are not deductible from the taxable income
of the payor, nor are they taxable in the hands of the recipient. is repre-
sents a radical change from the former income ta x regime, which applied
similar criteria to both periodic spousal support and periodic child sup-
For detailed ana lysis of the Federal Child Suppo rt Guidelines, see Julien D. Pay ne &
Marilyn A . Payne, Child Support Guidelin es in Canada, (Toronto: Irwin Law,
).
353
354 CANADIAN FAMILY LAW
port in that periodic payments were deductible from the payor’s taxable
income and were taxable as income in the hands of the payee.
C. PRESUMPTIVE RULE; TABLE AMOUNT OF
CHILD SUPPORT; SECTION EXPENSES
In the absence of specified exceptions, sect ion () of the Federal Child
Support Guidelines requi res the court to order the designated monthly
amount of child support set out in the applicable provincial t able. e
table amount of child support is fixed according to the obligor’s annual
income and the number of children in t he family to whom the order re-
lates. Where the obligor resides in Canada, the applicable provincial or
territorial table is that of the province or territory in which 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 Guidelines also empowers a court to order a contribu-
tion to be made towa rds necessary and re asonable speci al or extr aordin-
ary expenses t hat are specifically listed under sec tion of the Guidelines.
Although the court has a discretion in ordering section expenses, it has
no corresponding discretion with respec t to ordering the table amount. It
must order the table amount except where the Guidelines or the Divorce
Act expressly prov ide otherwise.
In determining a f ather’s concurrent obligations to pay court-ordered
support for his two children born of d ifferent mothers, where neither
child is livi ng with the father, section () of the Federal Child Support
Guidelines requires the cour t to separately determine the table amount
of support payable for each child. It is not open to the 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 child ren and then div-
iding the specified amount so t hat each child receives an equal share. In
M.L. v. R.S.E., Sullivan J. granted two orders that required the father,
whose annual income was ,, to pay the full table amount of
to each of his two children, in addition to specified section expenses.
Because the table amounts of chi ld support reflect economies of scale as
the number of children residing in the same household increases, but no
such economies apply when two children reside in different households,
Federal Child Suppor t Guidelines, s. ().
[]A.J.No.(C.A.).[] A.J. No. (C.A.).
355Child Support on or after Divorce
Sullivan J. held that, i n fixing the t able amount of child support, the two
children must be treated as members of dist inct family units and the t wo
families could not be treated as a si ngle unit by determining the table
amount payable for two children and then divid ing this equal ly between
the two children. e A lberta Court of Appeal found no error in Sull ivan
J.’s order respecting the f ull table amount of child support being payable
for each child in addition to the specified section expenses. Given the
obligor’s limited means, however, the Alberta Court of Appeal s tayed the
monthly payment of child support arrears ordered by Sull ivan J., but dir-
ected that the parties were at libert y to apply to the Court of Queen’s
Bench to lift the stay in t he event of a change of circumstances.
D. EXCEPTIONS TO PRESUMPTIVE RULE
e presumptive rule endorsing orders for the applicable table amount
of child support may be deemed inapplicable in the followi ng circum-
stances:
(i) where child support is sought from a person who is not a biological
parent but who stands in the place of a parent;
(ii) where a child is over the provincial age of majorit y;
(iii) where the obligor earns an income of more than ,;
(iv) in split cu stody arrangements whereby each parent has custody of
one or more of the children;
(v) in shared c ustody or access arrangements where a child spends not
less than percent of the year with each parent;
(vi) where undue hardship ar ises and the household income of the party
asserting undue hardship does not exceed that of the other house-
hold;
(vii) where there are consensual arrangements in place that attract the
operation of sect ions .(), (), and () or sections (.), (.), and
(.) of the Divorce Act.
E. OBLIGATION OF DE FACTO PAR E NT
1) Relevant Statutory Prov isions
e definition of “chi ld of the marriage” in se ction () of the Divorce Act
reads as follows:
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