Family Primer Series – Child Support

A parent’s obligation to provide financial support for their children is addressed within section 15.1 of the Divorce Act and section 31 of the Family Law Act. Under the Divorce Act[1] and the Family Property Act[2], a ‘parent’ can include a step-parent under certain circumstances. A step-parent can have an ongoing child support obligation for the maintenance of a child regardless of whether the biological father is paying child support.

The child support obligation of step-parents can be a complicated and contentious legal issue. If you are involved in a separation where either you or your partner are not the biological parent, contact a lawyer.

The support recipient’s income does not factor into child support calculations pursuant to the table amount, but the recipient’s income can become relevant if a spouse is seeking an order for an amount of support under one of the listed sections in the Guidelines. This is why, if a party brings an application for child support pursuant to the table amount only, the recipient’s financial statement doesn’t need to be filed (since it’s irrelevant).

The child support obligation continues for as long as that child resides with the recipient parent, and so long as the child is under the age of majority. Once a child becomes 18 years old, child support can still be payable under certain circumstances, such as if that child is pursuing additional education[3].

The amount of child support payable is governed by the Federal Child Support Guidelines. The Guidelines were brought into effect in 2006 to make child support outcomes more predictable. Most cases will be determined in accordance with the child support tables scheduled to the Guidelines, with some division of section 7 (i.e. – extraordinary) expenses. Continuance of medical and dental coverage for the children (section 6) is generally ordered where applicable, if available at a reasonable cost.

The Support Tables are publicly available and easy-to-use. Follow this link to find a calculator to help determine the table amount of support applicable to your case.

Another common ground for child support is section 7, or support for extraordinary expenses. Section 7 divides certain kinds of child-related expenses between parents in proportion to their respective incomes. Medical expenses, some child care expenses and some extracurricular expenses may be covered, depending on a number of factors. Most child care expenses, including expenses for school supplies, clothing, cell phones expenses, housing, utilities, and school fees are not generally divided.

Parties can deviate from the Table Amount in a limited number of circumstances, as set out in the Guidelines. An exhaustive list of these circumstances as follows: where a spouse is earning an income of over $150,000 per year (section 4), where a spouse is not a biological parent (section 5), payment of medical/dental insurance premiums (section 6), extraordinary expenses (section 7), split (section 8) or shared custody (section 9) custody, and that paying the table amount would incur undue hardship for a spouse or a support recipient (section 10)[2]. Deviation from the Table Amount often requires detailed submissions, and is rarely clear-cut (save for the proportionate division of certain s. 7 expenses, such as medical expenses). Claiming a support amount other than that set out in the Tables can be complicated. Speak to your lawyer to learn more about your rights.

Legal arguments about child support often surround determination of income. Income for the purpose of support can generally be assessed at the payer’s line 150 income on your last year’s notice of assessment, less union dues or professional fees, and a very limited number of other applicable deductions,such as amounts withdrawn from an RRSPs, some deductible business or farming expenses, and certain capital gains.

Where a court finds that a party’s ability to earn income is higher than their actual income, the Court can impute a higher income to them. If income is imputed to a party, they will pay support as if they were earning the imputed amount. If you would like to learn more about imputing income for the purpose of child support, contact a lawyer.

Calculation of support amounts can become much more complicated if you operate your own business or farm, if you receive a substantial portion of your income from a trust or from investments, if you reside outside of Canada, if you are underemployed, or if some or all of your income is taxed at a different rate than normal (i.e. – if you are a First Nations individual working on reserve). If any of these factors apply to you or your spouse, you should immediately consult with a lawyer regarding your particular situation.

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[1] The Divorce Act defines a “child of the marriage” at section 2(2) to include a child of a party who ‘stands in the place of a parent’.

[2] The Family Law Act defines a parent to include a person who has “demonstrated a settled intention to treat a child as a child of his or her family”, unless that child was placed with that child as a foster child.

[3] The Divorce Act is more inclusive than the Family Law Act on this point. A child may still be eligible for support under the Divorce Act under the definition of “child of the marriage” in section 2 on the basis that the “child cannot become independent due to illness, disability, or other cause.”

[4] A reduction in support based on undue hardship is uncommon where a party is not responsible for providing financial support for multiple families. It involves a multi-part test, including a comparison of the standard of living of both parents’ households, and a detailed assessment of the facts to establish unfairness.

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