Child Support on or after Divorce
| Author | Julien D. Payne/Marilyn A. Payne |
| Pages | 382-547 |
382
Chapter 9
Child Support on or After Divorce
A. GENERAL OBSERVATIONS
Fundamental ch anges to child support laws i n Canada occurred on 1 May 1997,
when the Federal Child Support G uidelines1 were implemented. ese Guide-
lines, as amended, reg ulate the jur isdiction of the cour ts to order child sup-
port in divorce proceeding s or in subsequent variation proceedings.2
1 SOR/197-175 [Divorce Act].
2 See, generally, Jul ien D Payne, “Child Supp ort Guidelines — Some Landmark Ca ses”
(2014) 42 Ad v Q 309. For a comprehensive ana lysis, see Julien D Pay ne & Marilyn A
Payne, Child Supp ort Guidelines in Canada, 2 020 (Toronto: Irwin Law, 2020). As to i nter-
jurisdic tional support ord ers, see sections 18 –19 of the Divorce Act and see se ctions 28
to 29.5 whereby the prov isions of the Hague Convent ion on the International R ecovery of
Child Support an d Other Forms of Family Maintena nce have the force of law in Ca nada in
so far as they re late to subjects th at fall within t he legislative comp etence of Parlia-
ment. And see John- Paul E Boyd, “A Brief Over view of Bill C-78, A n Act to Amend the
Divorce Act and Re lated Legislat ion; Part 2: Amendm ents Relating to Inte rjurisdict ional
Agreements a nd Treaties” (June 2018) online: C anadian Rese arch Institute for Law a nd
the Family w ww.crilf.ca /Documents/Bi ll_C78_ Overview_ Part_II _-_Jun _2018.pdf.
And for more detai led analysis, s ee “Legislati ve Background Paper on B ill C-78 (An
Act to amend the D ivorce Act)” online: Depar tment of Justice, Can ada https://www.
justice.gc.ca/eng/rp- pr/-lf/famil/c78/inde x.html; see a lso “e Divorce Act Chang es
Explai ned” online: De partment of Justice, C anada https://www.justice.gc.ca/eng/-df/
c-mdf/dace-clde/index.html. While Canada ha s signed the convention , it is not yet
a party. Can ada will be in a po sition to become a part y when at least one province or
territor y adopts implementing leg islation and ind icates to the federal gove rnment they
are ready for the Conve ntion to apply to them. e appli cation of the Convention in
Canada w ill therefore occu r on a province by provi nce basis.
Chapter 9: Child Suppor t on or After Divorce 383
B. INCOME TAX CHILD SUPPORT
Periodic child supp ort payments under agree ments or orders made after 1
May 1997 are free of tax .3 ey are not deductible from the ta xable income of
the payor, nor are they taxable i n the hands of the recipient. is represents
a radical cha nge from the former income ta x regime, which applie d similar
criteria to both p eriodic spousa l support and period ic child support i n 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 3(1) of the Federal Child Support
Guidelines requires the cour t to order the designated monthly amount of chi ld
support set out in the applicable prov incial table. e table amount of child
support is xed accordi ng to the obligor’s annual income and the number of
children in t he family to whom the order relates. W here the obligor resides
in Canada, t he applicable provincial or ter ritorial table is th at of the province
or territory in wh ich the obligor resides.4 If the obligor’s residence is outside
of Canada, the appl icable table is that of the prov ince or territor y wherein
the recipient parent resides. Section 3(1) of the Guidel ines also empowers a
court to order a contribution to be made towa rds necessary a nd reasonable
special or ex traordinary expen ses that are specically li sted under section 7
of the Guidelines. e li st of special and e xtraordina ry expen ses under sec-
tion 7(1)(a) to (f) of the Guidelines is ex haustive.5 Although t he court has
discretion in orderi ng section 7 expenses, it has no corresp onding discretion
with respect to orderi ng the table amount. It must order the table a mount
except where the Guideli nes or the Divorce Act6 ex pressly provide otherw ise.
e onus is on a parent seeking spec ial ex penses to prove that the cl aimed
expenses fa ll within one of the categories and are reas onable and necessary.7
In determini ng a father’s concurrent obligations to pay cour t-ordered
support for his two ch ildren born of di erent mothers, where neither child
is living w ith the father, section 3(1) of the Federal Child Support Guidelines
3 See Julien D Payne & M arilyn A Payne , Child Support Guidelines in C anada, 2020
(Toronto: Irwin L aw, 2020) ch 1, s B.
4 Federal Child Suppor t Guidelines, SOR/97-175 (Divorce Ac t), s 3(3).
5 Vidal v Dunn, 2018 ONSC 280 1.
6 RSC 1985, c 3 (2d Supp).
(CA); V idal v Dunn, 2018 ONSC 2801 (cr iminal defence e xpenses ineli gible).
Canadi an family law384
requires the court to se parately determine t he table amount of support pay-
able for each child. It is not open to the cou rt to treat the chi ldren as mem-
bers of the same fami ly unit by using the column in the applica ble provincial
table for the total number of ch ildren and then divid ing the specied amount
so that each chi ld receives an equal sh are. In ML v RSE,8 Sul livan J gra nted
two orders that required t he father, whose annual income was $22,900, to pay
the full t able amount of $203 to each of his two child ren, in addition to speci-
ed section 7 expe nses. Because the table a mounts of child suppor t reect
economies of scale as the number of c hildren residing in the same hous ehold
increases, but no such economies apply when two c hildren reside in dierent
households, Sulliv an J held that, in xing the table a mount of child sup-
port, the two ch ildren must be treated as members 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 d ividing th is equally
between the two c hildren. e A lberta Court of A ppeal found no error in
Sullivan J ’s order respecting the ful l table amount of chi ld support being
payable for each child in add ition to the specied sec tion 7 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
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 PRESUMP TIVE RULE
e presumptive rule endorsing orders for t he applicable table amount of
child support m ay be deemed inapplicable in the following c ircumstances:
• where child support is s ought 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 $150,000;
• in split custody ar rangements whereby each parent has custody of one
or more of the chi ldren;
• in shared custody or acces s arrangements where a ch ild spends not
less than 40 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;
8 [2006] AJ No 642 (CA); see als o Ewing v Mallette, [2009] AJ No 346 (CA); WL v NDH,
To continue reading
Request your trial