There are two separate Acts that govern child support in Ontario. First, claims for child support can be made under the federal Divorce Act if they are being made as part of a divorce proceeding. Second, and if the parties were never married or were married but are choosing to separate rather than divorce, applications for child support are made under Ontario’s Family Law Act.
The Federal Child Support Guidelines are regulations appended to the Divorce Act, and they govern all child support orders made under that Act. However, there are provincial Child Support Guidelines, which are appended to the Family Law Act, that mirror exactly the Federal Child Support Guidelines. Therefore, the amount of child support payable will be identical regardless of which act the claim is made under.
The discussion below will refer to the Federal Child Support Guidelines (“the Guidelines”), but the information will be equally applicable to those making claims under Ontario’s Family Law Act, using the provincial guidelines.
How Child Support Guidelines Work
The Guidelines determine child support by taking a percentage of the payor’s gross income. The percentage taken depends on the number of children.
The main feature of the Guidelines is the Table, which lists the amount of monthly support to be paid, based on the payor’s gross annual income and the number of children. The Table amount is presumed to be the baseline amount of support that will be paid, and any additional special or extraordinary expenses (such as for private tutoring, daycare, or healthcare) will be divided between the parents and added on top of the Table amount. By standardizing the applicable amounts of support, the Child Support Guidelines help to reduce conflict, ensure support is fair and consistently determined, and improve the efficiency of the litigation process.
The Child Support Guidelines are law. Both the Divorce Act and the Family Law Act specify that all orders for child support must be made in accordance with the applicable Guidelines.
Both Acts grant courts discretion to disregard the Guidelines in only two situations:
- If special provisions (such as the transfer or division of property for the child’s benefit) have been made for the provisions of the child in an order or agreement, and as a result of those provisions, application of the Guidelines would lead to inequity.
- If both spouses have consented in a domestic contract to an amount that deviates from the Guideline amount, but the court is satisfied that the agreement makes reasonable provisions for the support of any children.
See our article: Calculating Child Support for more information.
Who Pays Support?
Every parent has an obligation to support their children to the best of their ability. Generally, the parent with whom the child resides will be incurring the majority of the cost of raising that child and will therefore receive support. The payor parent’s child support payments will help defray these costs.
The definition of a “parent” includes not just a biological or adoptive parent, but anyone who stands in the place of a parent. This most commonly includes step-parents. If you have demonstrated an intention to treat your spouse’s or common-law partner’s child as your own and as part of your family, you may upon separation be obligated to pay support for that child.
All biological parents have a legal obligation to support their children financially. If a biological parent is attempting to avoid support obligations by denying paternity (or maternity), any party can apply under section 4(1) of the Children’s Law Reform Act for a declaration of paternity or maternity. The court also has authority under section 10(1) of the Children’s Law Reform Act to order blood or DNA tests for the purposes of proving parentage. If the person in question refuses to have the test done, the court can draw whatever inference regarding parentage that it finds appropriate.
There is always a presumption that a man married to the child’s mother leading up to the time of birth, or living with the mother in a relationship of some permanence at that time, is the child’s father, but that presumption can be rebutted by evidence to the contrary (such as a paternity test).
Who Counts as a child?
The definition of who is a child for the purposes of child support is not included in the Child Support Guidelines. Instead, this definition is given in the Act under which the application for support is made. The definitions given in the Family Law Act and the Divorce Act are slightly different. Therefore, who is a child for the purposes of support will differ depending on whether the application is made under the Family Law Act or the Divorce Act.
Section 2(1) of the Divorce Act defines “child of the marriage” as a child of the two former spouses who is under the age of majority (18) and has not withdrawn from their parents’ charge; or is the age of majority or over, has not withdrawn from their charge, but is “unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”
Under the Divorce Act it is generally accepted that a child will be considered a child of the marriage while pursuing post-secondary education, at least for an initial degree. Note that a child can also “withdraw” and then return as a child of the marriage again. For example, a child may move out after high school and begin working and supporting herself, but then move back home to continue her education, thereby becoming a child of the marriage again.
Under the Family Law Act, s. 31, a child for the purposes of support is defined as an unmarried child who is either a minor (under 18) or enrolled in a full-time program of education. Unlike the Divorce Act, then, the Family Law Act does not require support for dependent adult children who may be ill or disabled, and it also does not require support for any married children.
Who Receives Child Support Payments?
Support is paid to the recipient parent (the custodial parent), not directly to the child. Sometimes, if a child is over the age of majority and is pursuing post-secondary education, courts can order support paid directly to the child, but generally support goes to the other parent.
The payor spouse cannot specify how the support money is spent. It is at the discretion of the custodial parent to determine how to use that income in the child’s best interests.
Take this opportunity to learn more about Child Support Guidelines and how they may impact you and your children. Call an Ontario child support lawyer at (905) 581-7222 today!