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 Guidelines1 were implemented. ese Guide-
lines, as amended, regulate the jurisdiction of the courts 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 www.crilf.ca/Documents/Bill_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/index.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 Divorce383
B. INCOME TAX CHILD SUPPORT
Periodic child support payments under agreements 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 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 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 the 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 applicable table is that of the province or territory wherein
the recipient parent resides. Section 3(1) of the Guidelines also empowers a
court to order a contribution to be made towards necessary and reasonable
special or ex traordinary expen ses that are specically li sted under section 7
of the Guidelines. e list of special and extraordinary expenses under sec-
tion 7(1)(a) to (f) of the Guidelines is exhaustive.5 Although the court has
discretion in orderi ng section 7 expenses, it has no corresp onding discretion
with respect to ordering the table amount. It must order the table amount
except where the Guideli nes or the Divorce Act6 ex pressly provide otherwise.
e onus is on a parent seeking special expenses to prove that the claimed
expenses fa ll within one of the categories and are reas onable and necessary.7
In determining a father’s concurrent obligations to pay court-ordered
support for his two children born of dierent mothers, where neither child
is living with 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 separately determine t he table amount of support pay-
able for each child. It is not open to the court to treat the children 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 child receives an equal share. In ML v RSE,8 Sullivan J granted
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 expenses. Because the table amounts of child support 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, Sullivan J held that, in xing the table amount 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 specied section 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 the 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 access arrangements where a child spends not
less than 40 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;
8 [2006] AJ No 642 (CA); see als o Ewing v Mallette, [2009] AJ No 346 (CA); WL v NDH,
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeUnlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
