Child Support in the Province of Ontario
The enactment of the federal Child Support Guidelines (“the Guidelines”) in 1997 went a long way towards lifting the uncertainty that had previously plagued the determination of child support awards upon a family’s dissolution1. Reference to the Guidelines, means that in a great many cases, the questions - who pays and for whom, as well as how much and how long - have readily ascertainable answers. Notwithstanding the relief the Guidelines have brought, complications remain that will be discussed below.
When it comes to Child Support, who pays and for whom?
The obvious and simple answer to these questions is that a parent must pay child support for his or her child who is under 18 years of age and who remains in the charge of the parents2. Generally speaking, the parent with whom a child primarily resides will receive monthly child support from the other parent founded on the assumption that the parent with whom the child resides will naturally contribute to the support of the child and thus this contribution need not be mandated.
In some instances however the answer is not as straightforward as it would appear and attention must be given to the definition of the term “child.” The Guidelines define a child as a “child of the marriage” – a term which is given further elaboration in the Divorce Act. Crucially in the Divorce Act “child of the marriage” encompasses any child for whom spouses or former spouses stand in the place of parents. This means that a person who is not the biological parent of the child may still have a duty to provide for the child if that person has in the past taken on an economic or parenting responsibility for that child. The most common example of this scenario is awards made against divorcing step-parents for the support of a step-child.
When it comes to Child Support, how much and for how long?
The main element of the Guidelines is the Table, which forms the foundation of the calculation of the monthly child support award3. The Table is based on the annual income of the payor parent and the number of children to whom the award applies. The amount set out in the Table is presumed to be the monthly amount that a payor parent shall pay. For example, the Table sets out a monthly child support amount of $944.00 for a payor parent earning $63,000 yearly with 2 children.
Exceptions to this presumptive rule are found in the following cases:
- the child is over the age of majority;
- the payor earns more than $150,000 annually;
- the payor is not the biological parent of the child;
- the parents have split the custody of the children4;
- the payor parent resides with the child more than 40% of the time annually5; or
- awarding the table amount would cause undue hardship to the payor6.
In these instances, a court has discretion to order an amount different to that listed in the Table.
In addition to the Table amount, the payor may also be required to contribute to the special or extra-ordinary expenses of the children7. Special expenses include such items as child care expenses, extra-curricular activities, private school tuition, etc. The contribution is proportionate to the payor’s income in relation to the total income of both parents. For example, if both parents have a combined income of $100,000.00 with the payor parent earning $75,000.00 of this amount, he or she will be expected to contribute ¾ towards the amount of the special expenses. It should be noted that awards ordered in this category are discretionary with the overarching concern that the expense be necessary in light of the child’s best interests.
As can be seen, the critical determination in calculating the child support amount is the annual income of the payor parent. For salaried employees, line 150 of the payor’s annual Income Tax Return generally serves as the basis for calculating the amount8. For the self-employed, the determination of annual income may be more elusive. The Guidelines permit a court to include in a payor’s income amounts such as pre-tax income of a corporation, of which the payor is a shareholder, director or officer, to overcome the ability of these payors to mask the income that is actually available to them for support purposes. For payors a court believes to be intentionally under-employed or unemployed, the court has the authority to impute an income to the payor. The court may also impute income in those cases where a payor refuses to disclose information to corroborate his or her income.
The Guidelines do allow for the variation of a child support award. A variation to an order for child support made under a provincial table will be triggered by a change in circumstances, the result of which change would be a different amount being awarded. For example, if a payor’s income increases or decreases such that a new table amount is determined, a recipient or payor parent may on this basis make a variation application.
As noted above a child support obligation exists for the period that a child remains a child of the marriage. Generally, this means that child support will end when the child has reached the provincial age of majority for the province in which the child resides. However for those children who are incapable of supporting themselves due to illness or disability or educational expenses, the obligation will continue. With the importance attributed to the pursuit of post-secondary education in today’s world, most payor parents can expect the child support obligation to last at least until the child has obtained some form of post-secondary certification.
