C. Statutory Provisions Regulating Child Support

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 7-11

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Section 26.1(2) of the Divorce Act, as amended by S.C. 1997, c. 1, provides that "[t]he Guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation." Section 26.1(2) of the Divorce Act must be read in

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conjunction with section 3(1)(a) of the Federal Child Support Guidelines which provides that the applicable provincial or territorial table determines the amount of child support to be paid except in circumstances where sections 3 to 10 provide to the contrary. In cases where the basic table amount of child support is deemed payable, the court looks only to the income of the obligor and the number of children of the marriage who are entitled to support because the children will inevitably share the standard of living enjoyed in the custodial parent’s household.⁴²A judicial discretion to deviate from the Guidelines arises under section 3(2) with respect to children over the age of majority, under section 4(b)(ii) with respect to obligors with annual incomes in excess of $150,000, under section 5 where a spouse stands in the place of a parent, under section 7 which empowers a court to grant designated special or extraordinary expenses, under section 9 in cases of shared parenting, and under section 10 in cases of undue hardship. In the context of the judicial discretion arising under these sections, the Paras formula or the modified Paras formula can continue to play a significant role.

Section 15.1 of the Divorce Act sets out the following basic provisions respecting original applications for child support orders:

Child Support Orders

Child support order

15.1(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

Guidelines apply

(3) A court making an order under subsection (1) or an interim order under subsection

(2) shall do so in accordance with the applicable guidelines.

Terms and conditions

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a...