Child Support and The Divorce Act

Divorce Act R.S.C. 1985, c. 3.

Once you and your former spouse have decided to end your marriage and you realize that support is needed to properly care for the children you may make an application for an order for child support under s. 15.1(1) of the Divorce Act to either the Superior Court of Justice or the unified Family Court if either or both you and your former spouse live in Ontario or accept the jurisdiction of the court. See: s. 4(1)(a)-(b).

The courts may also grant an interim order for temporary child support under s. 15.1(2) to cover the period of time until your application under subsection (1) is decided. This subsection allows the parent against whom an application is made for support to satisfy his or her obligation towards the child immediately, if needed, so that the child does not suffer unnecessarily.

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).

S. 15.1(3) states that all orders shall be made in accordance with the Federal Child Support Guidelines and judges have the broad discretion to make an order for support for a definite or indefinite period of time, or to impose terms or conditions on the order, depending on the circumstances of each case.

According to s. 11 of the Federal Child Support Guidelines orders for child support may be paid in periodic payments, in a lump sum or in a lump sum and periodic payments.

Based on previously decided cases it seems as though periodic payments are usually imposed, however, in situations where there seems to be a risk that the paying parent will not honor the periodic payments then the court may choose to impose a lump sum payment. Moreover, s. 12 of the guidelines states that the support may be paid or secured, or paid and secured. Security for support may be ordered when a history of non-payment by the paying parent is demonstrated such that if he or she should default on the payments then they may be withdrawn from the secured funds. Or, it may be secured in the form of life insurance so that if the paying parent dies before fulfilling his or her support obligation to the child, the life insurance may be used for that purpose.

You and your former spouse may also avoid the application of subsection (3) and deviate from the table amounts found in the guidelines if:

• special provisions in an order, judgment or agreement have been made specifically for the benefit of the child, and that because of the special provisions already made the table amount would result in an amount of child support that is inequitable/would result in a windfall gain to the child.¹
• A recent case from the Ontario Superior Court defines special provision as “a provision that is out of the ordinary or unusual, replaces the need for ongoing support, and benefits the child. The parties’ intention is not relevant; what is critical is whether the provision objectively benefits the child.”
• This case also suggests that when including a special provision for child support you should compare the amount in the agreement with the table amount from the guidelines to determine whether or not it would be considered adequate.
• Or, if you both consent to an amount that is different from the table amount and the court is satisfied that the arrangement agreed to is reasonable for the purposes of supporting the children.

You should be aware that your ability to apply for or receive child support depends on whether or not you or your child satisfy the definitions of “spouse” or “child of the marriage” found in s. 2 of the Act. A child will be entitled to support, under this Act, provided that:

• he or she is under 18 years of age, and
• has not withdrawn from his or her parents’ control.
• Or, the child is over 18 years of age but still a dependent due to an illness, disability or other cause.
• Cases suggest that “other cause” can be anything from enrolment in a full-time education program to a depressed job market, therefore the test under this Act grants judges a very broad discretion to order child support in cases of adult dependent children.

Definitions 2. (1) In this Act, “spouse” means either of two persons who are married to each other; “child of the marriage” means a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; Child of the marriage (2) For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses includes (a) any child for whom they both stand in the place of parents; and (b) any child of whom one is the parent and for whom the other stands in the place of a parent.

Also under s. 2(2) a spouse or former spouse, who is not the biological parent of the child (such as a step-parent) but who acted as such, may be required to pay support after the decision to divorce has been made.

A 1999 decision from the Supreme Court of Canada states that a person cannot unilaterally withdraw from a relationship in which he or she stands in the place of a parent. In order to determine the nature of the relationship and whether a spouse or former spouse stands in the place of a parent the court must find a “settled intention” to do so which can be expressed formally or inferred from his or her actions.

This obligation will continue only as long as the emotional and social relationship between the step-parent and child continues, therefore the longer a biological parent waits to bring an application the less likely it is that the court will order support.

Some important factors to consider, which demonstrate a settled intention to stand in the place of a parent, are:

• whether there is a relationship between the child and the (absent) actual biological parent?
• Whether the child participates in the extended family in the same way as would a biological child?
• Whether the person provides financially for the child?
• Whether the person disciplines the child as a parent?
• Whether the person represents to the child, the family, the family, the world either explicitly or implicitly that he or she is responsible as a parent to the child?

You may also apply to either the unified Family Court or the Superior Court of Justice under s. 4(1) of the Children’s Law Reform Act to get a declaration that a person (either male or female) is the parent of the child if they are refusing to pay support. Remember that once biological parentage is proven that person has an obligation to financially support his or her child. S. 8(1) of the Children’s Law Reform Act imposes certain presumptions regarding parentage that, if satisfied, automatically make a person a parent:

Presumption of paternity 8. (1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances: 1. The person is married to the mother of the child at the time of the birth of the child. 2. The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child. 3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father. 4. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit. 5. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada. 6. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.

Lastly, the court has the authority under s. 10(1) to order blood tests or DNA tests for the purposes of proving parentage and should the person against whom the order is made refuse to get one done, then under s. 10(4) the court may draw such inferences as it thinks appropriate.

It is interesting to note that more than one parent can have a legal duty to pay child support for the same child if a custodial parent separates from a spouse/common law partner who is not the biological parent of the child but who has acted in such a way so that both that “parent” (i.e. step parent) as well as the biological parent may be required to pay support.

Once you and your former spouse decide to divorce it may not be necessary to go to court to determine support arrangements. If you are both willing and able to sit down and agree on an amount and the duration then support may be incorporated into a valid separation agreement.

It might be useful to refer to the Child Support Guidelines to find out the amount that would be ordered by a judge and then incorporate that into the agreement or you may include any other amount that fulfills the paying parent’s obligation to his or her children (a “special provision”). Special provisions, however, are rarely accepted by courts and in order for a special provision to be enforced you must ensure that the circumstances are unique and that the special provision is adequate and necessary. You and your former spouse may either draft the agreement yourselves, or you can each obtain independent lawyers to do it for you.

Another possibility is to seek out the services of a mediator to help the both of you negotiate terms and conditions of a support arrangement which may then be incorporated into an agreement. If this is the route you choose to take, i.e. including support provisions in an agreement, then you should file the agreement with the court to make enforceability through the Family Responsibility Office a possibility.

Arbitration is another option which may provide quicker, legally binding and more cost-effective results than a court. If you and your former spouse decide that you would like to try to arbitrate then it is required by statute that prior to making the decision you must both obtain independent legal advice so that you may fully understand the quality and nature of your selection. This is necessary because arbitration involves waiving your right to attend court to litigate the issues affecting both you and your former spouse and empowering the arbitrator with the ability to make final determinations. Moreover, a lawyer must be present to witness the signing of the agreement to arbitrate and provide independent legal advice.

Variation Orders

If an order for support has already been made but that amount is no longer adequate for the proper support of the child or due to a change in your circumstances it is no longer possible to pay the specified amount then under s. 17(1)(a) of the Act the court may make an order varying, rescinding or suspending it. However, it has to be satisfied that a change of circumstances has occurred² since the making of the previous child support order and any variation made shall be done so in accordance with the guidelines.

A change in circumstances can include (but is not limited to):

• paying parent’s income has either increased or decreased
• the child has withdrawn from parental control
• the child has switched residences, or
• the child has medical expenses that were not previously contemplated

Parents who have established support arrangements through an agreement can either make a change to the existing agreement or opt to draft a new one which must be dated, signed and witnessed. Also, it should be filed with the court so that the Family Responsibility Office can enforce the new support payment.

With variation orders you also should be aware of the fact that special provisions and reasonable arrangements allow for an order to be made that is different from the amount found in the guideline tables. However, judges when choosing to make such an order must record their reasons for doing so.

Priority to Orders

S. 15.3(1)-(3) gives priority to orders for child support. This means that if you bring two applications, one for child support and the other for spousal support, the court will determine the application for child support before the other.

The effect of this could very well reduce or eliminate your entitlement to spousal support but this is addressed in subsection (2) and the only requirement is that the court record its reasons for either discarding the application for spousal support or ordering an amount that is less than it otherwise would have been.

Also, if an order for child support is reduced or terminated then that constitutes a change in circumstances which allows a former spouse to make an application for an order for spousal support or to vary a previous order made.

S. 20(2) states that an order made under s.15.1 and s.17 has legal effect and is binding throughout Canada and it may be registered in any court in any province and enforced.