R. Priority of Child Support over Spousal Support; Effect of Child Support Order on Assessment of Spousal Support

Author:Julien D. Payne - Marilyn A. Payne
Pages:498-503
 
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See note 509

1) Relevant Statutory Provisions

Section 15.3 of the Divorce Act provides as follows:

Priority to child support

15.3 (1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.

Reasons

(2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.510Consequences of reduction or termination of child support order

(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

2) Commentary

Section 15.3 of the Divorce Act addresses the situation where the application for child support and the application for spousal support involve members of the same family.511It does not establish priorities as between sequential families. For example, a former divorced wife’s order for spousal support will not be subject to a statutory priority in favour of the obligor’s children from

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a second subsequently dissolved marriage. The difficulties that have plagued the courts respecting the competing claims of sequential families remain unresolved.

In consequence of the priority accorded to child support by section 15.3 of the Divorce Act, a court may be unable to grant a spousal support order because the obligor has no ability to pay any amount to satisfy the demonstrated need of the other spouse.512In granting an order for periodic spousal support, a court may acknowledge the amount to be less than would have been ordered but for the priority to be accorded to the needs of the children under section 15.3 of the Divorce Act.513A similar acknowledgment of the priority accorded to child support may be made where an order for lump sum spousal support is granted,514or where an order for spousal support is denied.515Although periodic spousal support may be reduced or denied where child support obligations impair the obligor’s ability to pay,516a lump sum spousal support payment may be practical.517In granting a lump sum order for spousal support, the court may expressly acknowledge a potential future right to periodic spousal support under section 15.3(3) of the Divorce Act.518Where the amount of spousal support has been reduced to accommodate child support payments, spousal support may be increased when these obligations cease.519A court may direct that an order for periodic spousal support shall be increased by the amount by which child support is reduced when each of the children ceases to be entitled to support.520Before making any order, it is important to keep in mind that periodic payments for child support that

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are ordered after 1 May 1997 are tax-free, whereas periodic spousal support payments are deductible from the payor’s taxable income and are taxable in the hands of the recipient spouse.521Courts must not overlook this difference when ordering what is, in effect, the conversion of child support payments into spousal support payments at some future date. An order whereby spousal support will be increased to a designated monthly amount on termination of the obligor’s duty to pay court-ordered child support may be expressly declared to be subject to further variation by reason of a material change of circumstances,522although such a declaration is presumably unnecessary.

Although section 15.3(1) of the Divorce Act requires the court to give priority to child support over spousal support, this does not signify that special or exceptional expenses should be ordered under section 7 of the Federal Child Support Guidelines to supplement the basic amount of child support payable under the applicable provincial or territorial table, where such a supplementary allocation would render the custodial spouse destitute.523The priority of child support, including section 7 expenses,524over spousal support that is mandated by section 15.3 (1) of the Divorce Act does not preclude the court from giving consideration to spousal support and looking at the overall picture in determining the appropriate contribution, if any, to be made to special or extraordinary child-related expenses.525A non-custodial parent who is ordered to pay periodic child support is not thereby disqualified from obtaining an order for periodic spousal support. Child support and spousal support, though necessarily intertwined, are separate concepts. The fact that the receipt of one may offset the payment of the other does not preclude an order for both kinds of relief in appropriate circumstances.526

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Section 15.3 of the Divorce Act applies to both custodial and non-custodial parents.527Consequently, a custodial parent’s obligation to provide financially for a child of the marriage takes priority over...

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