Child Support on or After Divorce

AuthorJulien D. Payne,Marilyn A. Payne
Date25 July 2022
Chapter 9
Child Support on or After Divorce
Fundamental changes to child support laws in Canada occurred on 1 May
1997, when the Federal Child Support Guidelines1 were implemented. ese
Guidelines, as amended, regulate the jurisdiction of the courts to order child
support in divorce proceedings or in subsequent variation proceedings.2 In
1 SOR/197-175 [Divorce Act].
2 This chapter focuses on fundamental aspects of the law governing child support.
Judges, legal practitioners, and other family dispute resolution specialists will need to
examine the far more comprehensive analysis in Julien D Payne & Marilyn A Payne,
Child Support Guidelines in Canada, 2022 (Toronto: Irwin Law, 2022). As to interjuris-
dictional support orders, see sections 18–19 of the Divorce Act and see sections 28 to
29.5 whereby the provisions of the Hague Convention on the International Recovery of
Child Support and Other Forms of Family Maintenance have the force of law in Canada
insofar as they relate to subjects that fall within the legislative competence of Par-
liament. And see John-Paul E Boyd, “A Brief Overview of Bill C-78, An Act to Amend
the Divorce Act and Related Legislation; Part 2: Amendments Relating to Interjuris-
dictional Agreements and Treaties” (June 2018) online:
bitstream/handle/1880/107572/Bill_C78_Overview_Part_II_-_Jun_2018.pdf. And for
more detailed analysis, see “Legislative Background Paper on Bill C-78 (An Act to
amend the Divorce Act)” online: Department of Justice, Canada
eng/rp-pr/f‌l-lf/famil/c78/index.html; see also “The Divorce Act Changes Explained”
online: Department of Justice, Canada‌l-df/cf‌l-mdf/dace-clde/
index.html. While Canada has signed the convention, it is not yet a party. Canada
will be in a position to become a party when at least one province or territory adopts
implementing legislation and indicates to the federal government they are ready for
the Convention to apply to them. The application of the Convention in Canada will
therefore occur on a province-by-province basis.
Chapter 9: Child Support on or Af ter Divorce 389
Premi v Khodeir,3 constitutional challenges to the obligor’s income model
under section 26.1(2) of the Divorce Act and sections 2(b) and 15(1) of the Can-
adian Charter of Rights and Freedoms were judicially rejected.
Periodic child support payments under agreements or orders made aer 1
May 1997 are free of tax.4 ey are not deductible from the taxable income of
the payor, nor are they taxable in 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 deductible from the payor’s taxable income and were
taxable as income in the hands of the payee.
In the absence of specif‌ied exceptions, section 3(1) of the Federal Child Sup-
port Guidelines requires the court to order the designated monthly amount of
child support set out in the applicable provincial table. e table amount of
child support is f‌ixed according to the obligor’s annual income and the num-
ber of children in the family to whom the order relates. Where the obligor
resides in Canada, the applicable provincial or territorial table is that of the
province or territory in which the obligor habitually resides.5 If the obligor’s
residence is outside of Canada, the applicable table is that of the province or
territory wherein the recipient parent habitually resides. Section 3(1) of the
Guidelines also empowers a court to order a contribution to be made towards
necessary and reasonable special or extraordinary expenses that are specif-
ically listed under section 7 of the Guidelines. e list of special and extra-
ordinary expenses under section 7(1)(a) to (f) of the Guidelines is exhaustive.6
Although the court has discretion in ordering section 7 expenses, it has no
corresponding discretion with respect to ordering the table amount. It must
order the table amount except where the Guidelines or the Divorce Act
3 [2009] OJ No 3365 (SCJ); see also Auer v Auer, 2021 ABQB 370.
4 See Julien D Payne & Marilyn A Payne, Child Support Guidelines in Canada, 2020
(Toronto: Irwin Law, 2020) ch 1, s B.
5 Federal Child Support Guidelines, SOR/97-175 (Divorce Act), as amended, s3(3).
6 Vidal v Dunn, 2018 ONSC 2801.
7 RSC 1985, c3 (2d Supp).
Canadian family law390
expressly provide otherwise.8 e onus is on a parent seeking special expenses
to prove that the claimed expenses fall within one of the categories and are
reasonable and necessary.9
In determining a father’s concurrent obligations to pay court-ordered
support for his two children born of dif‌ferent mothers, where neither child
is living with the father, section 3(1) of the Federal Child Support Guidelines
requires the court to separately determine the 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 family unit by using the column in the applicable provincial
table for the total number of children and then dividing the specif‌ied amount
so that each child receives an equal share. In ML v RSE,10 Sullivan J granted
two orders that required the father, whose annual income was $22,900, to pay
the full table amount of $203 to each of his two children, in addition to speci-
f‌ied section 7 expenses. Because the table amounts of child 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, Sullivan J held that, in f‌ixing the table amount of child support,
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 addition to the specif‌ied section 7 expenses. Given the obligor’s limited
means, however, the Alberta Court of Appeal stayed the monthly payment of
child support arrears ordered by Sullivan J, but directed that the parties were
at liberty to apply to the Court of Queen’s Bench to li the stay in the event of
a change of circumstances.
e presumptive rule endorsing orders for the applicable table amount of
child support may be deemed inapplicable in the following circumstances:
where child support is sought from a person who is not a biological par-
ent but who stands in the place of a parent;
8 PLC v CG, 2020 ABQB 211.
9 Bhandari v Bhandari, 2012 ONSC 3386, citing Park v Thompson (2005), 77 OR (3d) 601
(CA); Vidal v Dunn, 2018 ONSC 2801 (criminal defence expenses ineligible).
10 [2006] AJ No 642 (CA); see also Ewing v Mallette, [2009] AJ No 346 (CA); WL v NDH,
2014 NBQB 214; Soleimani v Melendez, 2019 ONSC 36.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT