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.

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on the payments then they may be withdrawn from the secured funds.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.

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:

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.

^1.See: s. 15.1(5) and s. 15.1(6) which places an obligation on the court
to record its reasons anytime it orders an amount that is different from
that found in the guidelines.

^2.S. 14 of the Federal Child Support Guidelines provides some insight into
what will be considered a “change in circumstances”:

1. in the case where the amount of child support includes a determination
   made in accordance with the applicable table, any change in circumstances
   that would result in a different child support order or any provision thereof;
2. in the case where the amount of child support does not include a determination
   made in accordance with a table, any change in the condition, means, needs
   or other circumstances of either spouse or of any child who is entitled
   to support; and
3. in the case of an order made before May 1, 1997, the coming into force
   of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes
   of Canada, (1997).