Child Support and The Family Law Act
The Family Law Act applies to legally married as well as common law couples who have children and decide to separate and it also applies to individuals who have had children together but who were never in a relationship.
It provides a very thorough and detailed set of rules to help determine entitlement to child support and the appropriate amount that will be awarded by making reference to the guidelines found in the regulations.1
Under s. 31(1) every parent, who is capable of doing so, has an obligation to provide support for his or her unmarried child, if that child is:
- a minor, or
- enrolled in a full time program of education.
Subsection (2) states that the obligation does not extend to children who are 16 years of age or older and who have voluntarily withdrawn from parental control. For example, if a child is 17 years old and decides to leave home to avoid the curfew imposed by his or her parents then that child cannot apply to court for support because the withdrawal was voluntary.
However, in situations such as that found in a 1989 case decided at the Ontario Provincial Court withdrawal will not be found to be voluntary and support will be awarded. In this case, a 19 year old daughter was forced to withdraw from her mother and step-father’s care due to the tension and stress the unbearable living situation was causing her. Her step-father was abusive towards her and her mother was passive in that she did not attempt to intervene. The three of them lived together, however, for 2 years there was no communication between the daughter and her step-father. She finally moved into her grandmother’s home and applied for support and it was granted because “if the child is driven from parental control due to physical and emotional abuse then the choice to withdraw from control is not voluntary but rather necessary to ensure the physical and mental well-being of the child who cannot be forced to remain there.” Recall then that the Divorce Act allows claims for support to be brought for children under the age of majority (i.e.18 years of age or less) whereas this Act contemplates the termination of the obligation at a younger age provided they choose to withdraw from the care of their parents.
Unfortunately, this Act does not contemplate situations where there is an adult child who suffers from an illness or disability and so we are unsure as to whether or not child support will be awarded in such a situation.
S. 1 defines both “child” and “parent”:
“parent” includes a person who has demonstrated a settled intention
to treat a child as a child of his or her family, except under an arrangement
where the child is placed for valuable consideration in a foster home
by a person having lawful custody;
The expression “settled intention” requires that to qualify as a parent, the individual must show more than a mere display of common courtesy or hospitality towards the child and instead there must be both cohabitation and a connotation of permanency to the relationship.
However, you should note that generally “a settled intention” will not be found to have been formed if the true situation is not known by the parent. According to recent Ontario decision, a father’s mistaken belief that the child was his biological son together with “the known and assumed obligation imposed by law on a parent to support his child cannot by itself give rise to the finding of a settled intention.”
Instead, the entire relationship needs to be reviewed by the courts in order to find a conscious intention to stand in the place of a parent based on actual knowledge. In this case a husband was suspicious of the paternity of one of the children born during his marriage and so he ordered a paternity test which confirmed his suspicion. Afterwards, his behavior changed drastically towards the child. The court found that no settled intention was present and so he was not required to pay support.
However, the law in this area is unsettled as there are other cases in Ontario that have taken a fundamentally different approach. Another Ontario decision from 2005 stands for the proposition that despite the presence of “paternity fraud” a step-father cannot evade his support obligations. The judge in this case stated that: “the appropriate question to ask is whether the relationship that existed at the time that the family was functioning as a unit, up until separation, was one in which the father treated the child as his own. To permit a father, in a sense, to ‘backdate’ his decision to parent the children ignores completely the reality of the children’s lives. Although the father may have made a different decision had he been advised of the facts at the time of the child’s birth, the fact is that he was a parent to the child for many years.” Ultimately, the best interests of the children, and the continued receipt of financial support from the non-biological parent, trump the “conscious settled intention” test mentioned above. Although this may seem unfair since the step father will be required to bear an economic burden as a result of the deceit suffered, the judge in an Ontario decision rendered in 1987 stated that the fraudulent behavior of a mother was a factor to be taken into consideration when determining the quantum and duration of the support payments.
If you refer back to s. 5 of the guidelines the amount of support that a person who stands in the place of a parent is expected to provide is that which the court considers appropriate, having regard to the Guidelines and any other parent’s legal duty to support the child. Therefore, an award may be ordered that is substantially less than the guidelines amount.
Also, as discussed above under the Divorce Act section, a parent may apply for a declaration of parentage under s. 4(1) the Children’s Law Reform Act. The s. 8(1) presumptions and the courts powers to order blood and DNA tests under s. 10(1) apply as well.
Therefore, based on the obligation found in s. 31(1) you may bring an application, under s. 33(1) for child support to either the Ontario Court of Justice, the Superior Court of Justice or the unified Family Court and the court may order that support be paid as well as determine the amount to be paid in accordance with the Child Support Guidelines.
If possible, i.e. if both parties are willing, you may mediate or arbitrate any matter relating to support and you may also choose to include it in an agreement. It is not necessary that all matters go to court.
In order for the court to determine the duration and amount of child support it is necessary that the all financial statements outlining the incomes of the parties be provided and it is required by law that these statements be verified by oath or statutory declaration.2
S. 34(1) gives the court the power to make an order that is final or temporary and also lists the various options that a court may choose from when making the order:
Powers of court
The purposes of an order for child support are listed under s. 33(7):
(7) An order for the support of a child should,
Unlike the Divorce Act this Act states that the application may be brought by a dependent, a dependent’s parent or one of the agencies listed under s. 33(3)(a)-(e) if that agency is providing, has provided or will be required to provide social assistance to the dependent. “Dependent” is defined in s.29 as: a person to whom another has an obligation to provide support under this part.”
If you and your former spouse/partner choose to include support arrangements in an agreement you should be aware that under this Act and according to s. 33(4) a provision determining or waiving support can be discarded under the following three circumstances:
- if the provision for support or the waiver of the right to support results in unconscionable circumstances;
- if the provision for support is in favor of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or
- if there is default in the payment of support under the contract at the time the application is made.
However, where an agreement contemplating child support is not problematic and the courts choose not to set it aside the parties should file it with the court, under s. 35(1) so that it may be enforced as stipulated in s. 35(2).
Recall that a child may be entitled to support from more than one parent in situations where there is a biological parent as well as a step-parent who has demonstrated a settled intention to stand in the place of a parent. Unlike the Divorce Act, this Act imposes the obligation statutorily and under s. 33(5)-(6) third parties may be added to applications if it is shown that they also have an obligation to provide support to the same dependent.
Deviation from the Child Support Guidelines
Although subsection (11) states that when making an order for child support the courts must use the guidelines, subsection (12) and (14) provide two exceptions. The first is that the courts may deviate from the table amounts found in Schedule I of the guidelines if it is satisfied that:
- that special provisions in an order or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
- that the application of the child support guidelines would result in an amount of child support that is inequitable given those special provisions.
Therefore, to be “special” the provisions must be out of the ordinary or unusual and must have actually, objectively helped the child. To determine whether this is so the courts must examine if the children have benefitted, directly or indirectly, by the terms of the separation agreement to the extent that their right to be supported by both parents should be extinguished.
The second exception provides that a different amount may be ordered on the consent of both parties where:
- reasonable arrangements have been made for the support of the child to whom the order relates; and
- where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance with the child support guidelines.
However, the courts under subsection (13) are required to give reasons when they choose to order an amount that differs from the table amount under subsection (12).
Variations to orders or agreements are brought under s. 37 of this Act. Therefore, if you are able to convince the court that there has been a material change in your circumstances3 or if new evidence has been discovered that was not previously available, and which relates to child support, then the court may vary, discharge or suspend a previous order or agreement under s. 37(2.1)(a)-(c). However, if a new order is made for a different amount of child support, it must still comply with the table amounts listed in the guidelines unless it falls under subsections (2.3) and (2.5)-(2.6) which create exceptions for special provisions and reasonable arrangements.
Exception: special provisions
Exception: consent orders
Section 37(1) lists which individuals and agencies may bring an application for variation:
Application for variation
You should also be aware that subsection (3) places a limitation on variation orders and states that no application for variation can be made within six months of the granting of the previous order, unless the court allows it.
One final thing to note that is interesting is that similarly to the Divorce Act, under s. 38(1)-(3), priority is given to child support.
1.However, if a legally married yet separated couple makes the decision to
divorce then according to s. 36(1) when a divorce proceeding is brought
under the Divorce Act then an application for support under the Family
Law Act is stayed unless a divorce is granted without support being determined.
In that case the judgment under the Family Law Act continues in force,
see: s. 36(3).
2.See: s. 41 and s. 41(1)-(4) allows the court to contact other individuals, such as employers, to obtain information relating to a party’s income to verify that the information in the financial statements is correct.
3.S. 14 of the Child Support Guidelines provides some insight into what will be considered a “change in circumstances”:
- In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.
- 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 parent or spouse or of any child who is entitled to support.
- In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
- In the case of an order made under the Act, the coming into force of subsection 33 (11) of the Act.