Criteria and Objectives of Child Support

Date27 July 2022
AuthorJulien D. Payne,Marilyn A. Payne
 
Criteria and Objectives of Child Support
Before the implementation of the Federal Child Support Guidelines in Canada on 1 May 1997,
empirical data in Canada indicate that a divorced primary caregiving parent was unlikely to
receive more than 20 percent of the net income of the paying spouse and parent as spousal
and/or child support. It is not surprising, therefore, that single mothers and their children
represented a disproportionate percentage of the poverty classes. is societal problem,
which has not been conned to Canada, led to the implementation of mandatory child
support guidelines in England, Australia, New Zealand, the United States, a s well as in Can-
ada. e Guidelines are premised on objectively based numerical indicators of the spec ic
amount of child support that an individual should normally pay by agreement or court order
on marriage breakdown or divorce or to a single parent. As of 1 May 1997, child support
rights and obligations under the Divorce Act underwent a radical change. e previous child
support regime applying under the Divorce Act, which was premised on the exercise of an
unfettered judicial discretion, was rejected by the government as unpredictable, inconsistent,
costly, and unfair to children.1 Recognition of these limitations of the judicial discretionary
regime led to major research studies being undertaken by the Federal/Provincial/Territor-
ial Family Law Committee for several years prior to the legislative and regulatory changes.
ese studies produced changes in the following key areas. First, child support paid under
orders or agreements made on or after 1 May 1997 is no longer taxed as income to the
recipient, nor is it tax deductible by the payor. Second, the Federal Child Support Guidelines
provide xed table amounts of monthly child support that help parents, lawyers, and judges
to set fair and consistent child support in divorce cases. e table amounts take the new
tax rules into account. Fixed schedules for the determination of child support can promote
(1)simple and inexpensive administrative procedures for assessing the amount of child sup-
port; (2) consistency of amounts in comparable family situations; and (3) higher child sup-
port payments that more realistically reect the actual costs of raising children. ey are
MGH v KLDH,  NBCA .
2      , 
unlikely, however, to resolve the economic crises of separation and divorce for women and
children. e war on poverty requires more than piecemeal reform of child support rights
and obligations, although the Guidelines may reduce the economic plight of primary care-
giving parents to some degree.
Prior to 1 May 1997, periodic child support payments made pursuant to a court order or
written agreement after marriage breakdown were deductible from the taxable income of
the payor under sections 60(b), 60(c), and 60.1 of the Income Tax Act3 and were taxable as
income in the hands of the payee under sections 56(1)(b) and (c), provided that such pay-
ments were made to the primary caregiving parent and not to the children directly.4 As of 1
May 1997, Canada shifted to an income tax system whereby the payor no longer receives a
deduction for payments made and the receiving parent no longer pays tax on child support
received under any new order or agreement or pursuant to any variation made after 30 April
1997 of a pre-existing order or agreement.5
e new tax rules do not apply to orders or agreements made before 1 May 1997 unless
(a) a court order or agreement made on or after 1 May 1997 changes the amount of child sup-
port payable under an existing agreement or court order; (b) the court order or agreement
specically provides that the new tax rules apply to payments made after a specied date,
which cannot be earlier than 30 April 1997; or (c) the payor and the recipient have both signed
and led a form with the Canada Revenue Agency stating that the new tax rules apply to pay-
ments made after a specied date that cannot be earlier than 30 April 1997.6 e tax changes
do not apply to periodic spousal support payments, which continue to be deductible from the
income of the payor and constitute taxable income in the hands of the payee.7
Before 1 May 1997, lawyers and courts sometimes arranged or ordered a global amount
of spousal and child support without apportioning the amount payable to each category of
dependant. Such global amounts were commonly used by lawyers and courts when dealing
with interim support. is practice should be abandoned as a consequence of the new tax
And see David Kitai, “A Game Changer for Family Law,Law Times,  February . is brief analy-
sis discusses the impact of Ontario’s Childcare Access and Relief from Expenses (CARE) tax credit on
child support and spousal support.
RSC  (th Supp), c .
ibaudeau v Canada (Minister of National Revenue), []  SCR .
Del Puppo v Del Puppo, [] BCJ No  (SC); Hilchie v Hilchie, [] NSJ No  (Fam Ct); Acornv
DeRoche, [] PEIJ No  (TD). But see Fung-Sunter v Fabian, [] BCJ No  (SC), citing Revenue
Canada Pamphlet on Support Payments, P(E) Rev  at .
Fontaine v Fontaine, [] BCJ No  (CA); Gordon-Tennant v Gordon-Tennant, [] OJ No 
(Gen Div); Richard v Richard, [] SJ No  (QB) (unintended income tax consequences of amended
agreement found to constitute sucient reason to grant order for child support in accordance with
the Federal Child Support Guidelines); compare Schipper v Maher, [] MJ No  (QB) (retroactive
variation of child support arrears that accrued before and after implementation of Federal Child Support
Guidelines). See also Warbinek v Canada,  FCA , citing Holbrook v Canada,  FCA ;
Chadwick v Canada,  FCA .
Williams v Williams, [] BCJ No  (SC); see als o SAJM v DDM, [] MJ No  (CA) (trial
judge’s order for reduction in amount of spousal support not justied, having regard to nancial
disparity between old and new orders).

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