I. Terms and Conditions

Author:Julien D. Payne - Marilyn A. Payne

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1) Section 15 1(4) of Divorce Act

Diverse terms, conditions and restrictions may be imposed on child support orders pursuant to section 15.1(4) of the Divorce Act.279

2) Speculative and Anticipated Future Contingencies

A court will not determine the amount of child support on the basis of changes that are merely speculative.280The court may, nevertheless, anticipate future events that are expected to occur. For example, the court may order that the amount of child support shall decrease in accordance with the applicable provincial table after the division of the obligor’s income bearing assets results in a decreased income.281A court may temporarily reduce the monthly amount of child support payable under the applicable provincial table of the Guidelines, where the obligor will sustain a loss of employment income and be compelled to rely on employment insurance after necessary medical or surgical treatment.282To possibly avert the need and expense of further litigation, an order may be granted to provide for future child support payments while the children complete their post-secondary education.283

The amount of child support may reflect alternative plans relating to the post-secondary educational programs of the respective children.284A court may refuse to make a prospective order based on future contingencies, while advising the parties to consider the possibility of being penalized in costs for ignoring the lessons learned from the current proceeding.285A child support order may be tiered to cover future events.286Where the obligor is currently underemployed or unemployed but is likely to achieve better employment in the future, the court may order child support on a graduated basis that is conditional on the

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obligor’s income.287A court may order that a certain level of child support be paid while the obligor is unemployed and a higher level of support be paid when the obligor is employed or receiving unemployment insurance benefits.288In Crick v. Crick,289Warren J., of the British Columbia Supreme Court, concluded that there is no legislative authority whereby the court can set aside a portion of the amount of periodic child support to be paid into a trust account to meet the child’s future educational and other needs. A contrary conclusion was reached in Greenwood v. Greenwood,290wherein Burnyeat J., of the British Columbia Supreme Court, granted an order for the establishment of a post-secondary education fund and further directed that the payor should be entitled to pay the amount directly into the fund and thereby be eligible for any income tax benefits consequently available. Given the disinclination of the courts to grant child support orders that address future contingencies291and the well established principle that support orders should be based on the facts existing at the time of the order or on facts that are foreseen as likely to occur,292the conclusion of Warren J. in Crick v. Crick appears to be sound, notwithstanding that section 15.1(4) of the Divorce Act confers a discretion on the court to "impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just." The implementation of the Federal Child Support Guidelines on May 1, 1997, whereby the basic table amount of child support is based on the obligor’s current annual income, militates against the exercise of an overriding judicial discretion to address future contingencies, at least in those cases where the amount of child support is based solely on the applicable provincial table. This analysis accords with the decision of the Saskatchewan Court of Appeal in Bachorick v. Verdejo,293which has been endorsed by the Ontario Court of Appeal in Simon v. Simon,294wherein it was concluded that a court has no jurisdiction under the Divorce Act or the Federal Child Support Guidelines to build a fund for a child’s future education out of the monthly table amount of child support. Any judicial direction to this effect would negate the underlying premise of the Federal Child Support Guidelines that the amount of child support reflects the current needs of the children. It would also constitute an unwarranted intrusion on the spending priorities of the custodial parent. The implementation of the Guidelines has not changed the basic principle that a court will not ordinarily compel a custodial parent to account for how child support payments are spent. The role of the court in ordering child support is to establish the appropriate amount of

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child support, based on the circumstances at the time when the application is heard. It is not a responsibility of the court to guarantee that the standard of living of children will be assured for the future. If that were the case, a court would be required to set aside funds for such possibilities as illness or loss of employment in every case. The Federal Child Support Guidelines do not change the role of the court from that which predated their implementation. While the reasoning in Bachorick v. Verdejo is compelling in the context of the specific order made in that case, a distinction might possibly be made between child support orders in the applicable provincial or territorial table amount and...

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