Child Support Law In Canada

We have come a long way since these words were written by the venerable common law stalwart William Blackstone, circa 1765:

"No person is bound to provide a maintenance for his issue unless where the children are impotent and unable to work, either through infancy, disease or accident and then is only obliged to find them with necessaries... for the policy of our laws, which are ever watchful to promote industry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence."

Today, every Canadian province has an enforceable statutory obligation exemplified by ¶88(1) of BC’s Family Relations Act:

"Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child."

Ontario’s Family Law Act is much more helpful in that it adds statutory guidance to the thorny issue of adult children (the coverage of which exceeds the limits of this article (but see • Duhaime, Lloyd, Adult Child Support: "Dad, Send Money"):

"31. Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so (but this) ... obligation ... does not extend to a child who is sixteen years of age or older and has withdrawn from parental control."

For court applications which are made under the umbrella of the Divorce Act, that statute does not speak so directly of the parental obligation to support a child, instead simply saying that a judge may make a child support order.

Once a child entitlement to support or, looked at differently, a payor’s child-support liability is established, the next issue is how much should be paid?

For decades, child support was an uncertain issue with Canadian courts in different parts of the country exercising their discretion separately. What we ended up with was a lack of uniformity in the relevant body of jurisprudence; a mess for the people, quite frankly. This lead to over-litigation of the issue in court. The lawyers made money and the judges were kept busy but the people did not know what the rule of law was. That also made it hard to settle, thereby firing the coals of litigation in an environment where legacy issues are so important.

Since the 1980s, USA law required each state to develop child support guidelines. The Federal Government estimated that the guidelines resulted in a 50% increase in child support payments.

On May 1, 1997, Canada followed suit and the Federal Child Support Guidelines came into  force, removing from the discretion of judges, the calculation of child support in Canada.

child supportThe stated "objectives" of the CSG are set out at ¶1:

"The objectives of these Guidelines are

(a)  to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b)  to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c)  to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d)  to ensure consistent treatment of spouses and children who are in similar circumstances."

Often referred to by their acronym "CSG", they are actually a federal regulation promulgated pursuant to the Divorce Act.

The CSG can be divided roughly into two components, the first being a small code of law, some 27 articles.

The second component is a schedule to the CSG per se; a set of charts or "tables" which are based on formulas as to how much it costs to raise a child in different parts of the country.

The tables reference annual incomes in increments of $100, from $8,000 to $150,000 annually, and providing for a set monthly child support payment based on the number of children from one to six or more. There is a separate chart for each province, based generally on the cost of living in each province.

The lingo of the trade as the person receiving child support known as the recipient and the person paying it, the payor.

For example, a payor living in the province of Québec and earning $40,000 a year, for one child, would pay $303 a month; $514 a month for two children.

That same payor, if living in the Province of British Columbia, because the charts are different, would be paying $370 or $610 for two children, monthly. If the payor lived in Ontario, the comparative amounts would be $367 or $601 a month.

At the time this article was last updated, or July, 2007, Justice Canada had a child support online lookup service at http://canada.justice.gc.ca/en/ps/sup/lookup/index.asp, which can be used to calculate child-support based on income, number of children, and payor’s province of residence, as where the recipient and the payor live in different provinces, it is the chart of the payor’s province of residence that applies (¶3(3) CSG).

In some cases, children have expenses outside of what is covered in basic child-support. The CSG clearly calls these add-ons "special or extraordinary", and so therefore neither routine nor ordinary. They include childcare expenses, health-related expenses, extracurricular activities or post-secondary education expenses. The "extracurricular activities" item is particularly open-ended.

These types of expenses, because they are listed at ¶7 of the CSG, are sometimes referred to as "Section 7" expenses. They are supposed to be "special or extraordinary" but it's almost as if they are anything but nowadays. It is very rare to see a child-support claim which does not include this add-on. The judges routinely grant these applications.

The payor and recipient pay Section 7 expenses in proportion to their respective incomes. As you may surmise, a recipient income is immaterial to a basic child-support claim. But once a Section 7 claim is made, the recipient’s income is required in order to calculate the payor’s contribution.

The federal Minister of Justice uses the following fact pattern as an example in their Federal Child Support Guidelines: Step-by-Step publication. In this scenario, there is only one child and the mother, Michelle is the payor. Her income is $50K and her basic child support is $938 monthly.  Patrick, who earns $40K annually, is the child support recipient. There is a net day care expense of $450 a month (it's actually more but the net figure is what we care about and it is arrived at by subtracting the value of Patrick's tax deductions in relation to the day care expenses).

"They first calculate the total income of both parents by adding both their incomes ($50,000 plus $40,000 = $90,000). Then, to find out how much Michelle would pay, they would divide Michelle's income by the total income and multiply the result by the expense amount. $50,000 divided by $90,000, multiplied by $450, equals Michelle's share of the expense: $50,000 X $450 = $250. Michelle's $250 for child care expenses would be added to the table amount of support of $938 for a total amount of child support of $1,188 per month."

These calculations are difficult and except for the rare family law lawyer adept at math (and I am not one of them), specialized software is required which cost at least $100 per use and which is not generally made available to the public.

Despite of the stated objectives, the CSG can be very intimidating.

It gets worse.

The Payor is invited to apply to the court for an abatement of child-support if paying the full amount would impose on the payor "undue hardship" and a lesser "standard of living" compared to the recipient (¶10). The CSG suggests that this may be caused by a Payor having an unusually high load of matrimonial debts, high access costs, or support obligations towards another person (see the dedicated article on this topic: Undue Hardship - The Child Support Paradox).

The reality is undue hardship applications are very difficult. In one case (and there are many skeletons along the path of undue hardship applications), a payor had an income of $50,000 but access costs of up to $250 per trip, six times a year. His application to have child-support abated pursuant to ¶10 of the CSG was dismissed (Wilson v Wilson 1997 34 RFL 4th 242 BCSC).

The CSG also provides for split custody arrangements, in which case "the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses" (¶8). Here, at least, calculation is within reach of the common litigant.

Shared custody is far more problematic. First of all, the magic threshold is attained when the payor "exercises a right of access to, or has physical custody of, a child for not less than 40% of the time over the course of a year".

If that threshold is attained, an offset or abatement of child support is at the court's discretion (¶9), a wholly unsatisfactory state of affairs. There is a completely predictable and natural  inclination for payors to increase their access to child to that 40% threshold, out of love to be sure, but not unaware of the consequences on their support liability.

In Contino v. Leonelli-Contino, 2005 SCC 63, at http://www.canlii.com/en/ca/scc/doc/2005/2005scc63/2005scc63.html, Canada's Supreme Court said that (edited from ¶5, 27 and 31, 43):

"Forty percent or more time spent with physical access to the child triggers the application of the three factors in s. 9. The three factors structure the exercise of the discretion. These criteria are conjunctive: none of them should prevail. Consideration should be given to the overall situation of shared custody and the costs related to the arrangement while paying attention to the needs, resources and situation of  parents and any child. This will allow sufficient flexibility to ensure that the economic reality and particular circumstances of each family are properly accounted for. It is meant to ensure a fair level of child support.

"There is no presumption in favour of reducing the parent’s child support obligation downward from the Guidelines amount.

"The simple set-off (the support payment is calculated by determining the Table amount for each of the parents as though each was seeking child support from the other - the amount payable is the difference between the two amounts), serves as the starting point, but it cannot be the end of the inquiry. It has no presumptive value."

This is just a summary of the law of child support in Canada. Each point has a plethora of qualifications not otherwise mentioned. There are many other aspects of child-support not covered in this article such as some distinctions which ought to be made between Divorce Act and provincial family law legislation, income tax issues, inter-jurisdictional support applications, adult children, step-children, support enforcement, and the interplay with spousal support (¶15.3 of the Divorce Act says that child support has priority where the two conflict).

Published: Wednesday, June 27, 2007
Last updated: Thursday, November 08, 2012
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