H. Fixed Table Amount; Judicial Discretion; Condition, Means, Needs and Other Circumstances

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 20-23

Contenidos

• 1) Definition of "Condition" of Spouses and Child.
• 2) Definition of "Means".
• 3) Definition of "Other Circumstances".

Page 20

Provincial and territorial tables under the Federal Child Support Guidelines fix child support payments based on the obligor’s income and the number of children of the marriage to whom a support obligation is owed. The judicial discretion to deviate from the presumptive rule under section 3(1) of the Federal Child Support Guidelines is strictly limited and clearly specified. The court may depart from the applicable provincial table amount under the Guidelines only under sections 15.1(5) to 15.1(8) and 17(6.2) to 17(6.5) of the Divorce Act, or under sections 3(2), 4, 5, 7, 8, 9, or 10 of the Guidelines.¹¹⁰Under these various sections, the court is granted a discretion that is structured by the language of the particular section.

Deviation from the tables is permissible in cases which involve children over the age of majority,¹¹¹obligors with an income over $150,000,¹¹²special and extraordinary expenses,¹¹³

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shared custody¹¹⁴or undue hardship.¹¹⁵Deviation from the applicable provincial or territorial table amount of child support is also permissible under sections 15.1(5) to 15.1(8) and 17(6.2) to 17(6.5) of the Divorce Act.¹¹⁶The right of children to support in accordance with the provisions of the Federal Child Support Guidelines is not foreclosed or fettered by the applicant mother’s acknowledgment at the time of her divorce that reasonable arrangements had been made for the support of the children.¹¹⁷In these situations as well as in variation proceedings that fall subject to section 14(b) of the Federal Child Support Guidelines, the condition, means, needs or other circumstances of the spouses and child must be considered.¹¹⁸The presumptive rule under section 3(1) of the Federal Child Support Guidelines does not apply to a spouse standing in the place of a parent, in respect of whom section 5 of the Guidelines confers a broad discretion on the court to assess such an amount of child support as the court considers appropriate, having regard to the section 3(1) of the Federal Child Support Guidelines. It also has no application to parenting arrangements falling within the ambit of section 9 of the Guidelines.¹¹⁹Absent a finding of undue hardship under section 10 of the Guidelines, a court has no discretion to adjust the applicable table amount of child support to reflect the fact that the custodial parent has additional expenses because of the non-custodial parent’s non-involvement with the child by way of access.¹²⁰A court may average out the monthly payments of child support to reflect the obligor’s seasonal employment.¹²¹

1) Definition of "Condition" of Spouses and Child

The "condition" of the spouses has been defined to include their age, health, needs, obligations, dependants and the station in life of the parties.¹²²

2) Definition of "Means"

The word "means" includes all pecuniary resources, capital assets, income from capital assets or from employment earning capacity and any other source from which gains or benefits are received, together with, in certain circumstances, money that a person does not have in possession but that is available to such person.¹²³In determining what support, if

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any, should be paid, the court should consider the income earning capacity of each spouse, their income from investments, and their net worth generally.¹²⁴The same sections of the Guidelines also require the court to consider the "needs" of each spouse, thus allaying any notion that "means" are to be accorded paramountcy in determining the right to, amount and duration of support.¹²⁵An obligor’s unmarried cohabitational relationship with a third party may increase the ability to pay child support by reason of the unmarried cohabitant’s responsibility to contribute to their common household income, thereby increasing the...