Child Support On or After Divorce
| Author | Julien D. Payne/Marilyn A. Payne |
| Pages | 359-472 |
Child Support On or After Divorce
A. GENERAL OBSERVATIONS
Fundamental changes to child support laws in Canada occurred on May
, when t he Federal Child Support Guidelines were implemented. ese
Guidelines, as amended, regu late the jurisdiction of the courts to order child
support in divorce proceedi ngs or in subsequent variation proceedings.
Since May , most provinces and territories have implemented simi-
lar g uidelines for applic ation in child support proceedings instituted pursu-
ant to provincia l or territorial statute.
B. INCOME TAX CHILD SUPPORT
Periodic child suppor t payments under agree ments or orders made after
May are free of ta x. ey are not deductible from the t axable income of
the payor, nor are they tax able in the hands of the recipient. i s represents
a radica l change f rom the former i ncome tax regime, which applied similar
criteria to both periodic spousal support and periodic c hild support in that
periodic payments were deductible from the payor’s taxable income and were
taxable as i ncome in the hands of the payee.
C. PRESUMPTIVE RULE; TABLE AMOUNT OF CHILD
SUPPORT; SECTION EXPENSES
In the absence of specified exceptions, section () of the Federal Child Support
Guidelines requires the court to order the designated monthly amount of child
SOR/- (Divorce A ct).
For detailed an alysis of the Federal Child S upport Guidelines, see Ju lien D. Payne & Mari-
lyn A. Payne , Child Support Guidelines i n Canada, (Toronto: Irw in Law, ).
support set out in the applicable prov incial table. e t able amount of child
support is fi xed according to the obligor’s annual income and the number of
children in the family to whom the order re lates. Where the obligor resides
in Canada, the applicable provincia l or territorial table is that of the province
or territory in which the obligor resides. If t he obligor’s residence is outside
of Can ada, the applicable table i s 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 towards necessary and rea sonable
special or extraord inary ex penses that are specifica lly listed under section
of the Guidelines. Alt hough the court has a discret ion in ordering sec tion
exp enses, it has no corresponding di scretion with respec t to ordering the
table amount. It must order the table amount except where the Guidelines or
the Divorce Act ex pressly provide otherwise.
In determining a father ’s conc urrent obligat ions to pay court -ordered
support for h is two child ren born of di fferent mothers, where neither ch ild
is living wit h the father, section () of the Federal Child Support Guidelines re-
quires the court to separately determine the table amount of support 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 ta ble
for the tota l number of chi ldren and then dividing the specified amount so
that each ch ild receives an equal share. In M.L. v. R.S.E., Sulliv an J. granted
two orders that required the father, whose annual income was ,, to pay
the full table amou nt of to each of his two child ren, in addition to speci-
fied sect ion ex penses. Because the table amounts of c hild 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, Sulliva n J. held that, in fixing the table amount of chi ld support,
the two children must be treated as members of distinct family units and the
two fa milies could not be treated as a sin gle unit by determining the table
amount payable for two children a nd then dividing this equa lly between the
two chi ldren. e Alber ta Court of Appea l found no error i n Sullivan J.’s or-
der respecting the full table amount of child support being payable for each
child in addition to the specified section ex penses. Given the obligor’s limit-
ed means, however, the Alberta Court of Appeal stayed the monthly payment
of child sup port arrears ordered by Su llivan J., but directed that the parties
were at liber ty to apply to the Court of Queen’s Bench to l ift the stay in the
event of a change of circu mstances.
Federal Child Support G uidelines, SOR/- (Divorce A ct) s. ().
R.S.C. (d Su pp.), c. .
[] A.J. No. (C.A .). See also Ewing v. Mallette, [] A .J. No. (C.A.).
Chapter : Child Sup port On or After Divorce
D. EXCEPTIONS TO PRESUMP TIVE RULE
e presumptive r ule endorsing orders for the applicable table amount of
child support m ay be deemed inapplicable in the following c ircumstances:
where child support is 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 arrangements whereby eac h parent has custody of one •
or more of the children;
in shared cu stody or access ar rangements where a child sp ends not •
less than percent of the yea r with each parent;
where undue hardship arises and the household income of the party as-•
serting undue ha rdship does not exceed that of the other household;
where there are consensual arrangements in place that attract the •
operation of sections .(), (), and () or sect ions (.), (.), and
(.) of the Divorce Act.
E. OBLIGATION OF DE FACTO PARENT
) Relevant Statutory Provisions
e definition of “child of t he marr iage” in section () of the Divorce Act
reads as follows:
() For the pur poses of the definition of “chi ld of the marria ge” 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 c hild of whom one is the parent 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 “i n the place of a parent” to h is or her spouse’s ch il-
dren from a previous ma rriage, may be ordered to support those ch ildren.
A spouse stands in the place of a parent within the meaning of section
() of the Divorce Act when th at spouse by hi s or her conduct m anifests an
intention of placing himself or herself in the situation ordinari ly occupied by
Chartier v. Chartier, [] S.C.J. No. . See, ge nerally, Nicholas Ba la, “Who Is a ‘ Parent’?
‘Standin g in the Place of a Parent’ a nd Section of the Child Sup port Guidelines” in e
Law Societ y of Upper Canada, Sp ecial Lectures : Family Law (Toronto: Irwi n Law,
) .
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