*Please note that the information on this website is intended as a guide only. Each case is unique and context-specific. Legal advice should be sought in regards to your family issue. Provincial and territorial legislation on family law policy and legislation will differ from province to province. If you or anyone you know requires legal advice, an experienced family lawyer should be contacted. If you have any questions not covered on this website, send an email enquiry to email@example.com and we’ll be sure to get back to you shortly.
In 1996, the Canadian Government instituted Child Support Guidelines to assist in child support issues. Many provinces in Canada have enacted legislation to ensure that provincial statutes adhere to these guidelines. It is always best to check with an experienced family law lawyer in your area to determine what practices your province follows, and how those practices affect you.
The Child Support guidelines require that a Judge make an order for child support based upon the established guidelines. The judge will examine criteria on various income categories to determine what must be paid. There is also room to allow for additional expenses which are to be adjusted in the income calculations. There are separate guidelines for split or shared custody, along with a descriptor on how to accurately calculate a payer’s income. The purpose of this measurement is designed to bring certainty and validity to what must be paid and received for child support.
No. Payments under the Child Support Guidelines are not taxable. Payments are neither taxable for the party paying the support nor the party receiving the support.
Since the Child Support Guidelines are not retroactive (ie: they took effect in May 1997), agreements made before this date are not affected. Agreements made prior to this date can opt into the new Guidelines if both parties decide to do so.
Under the Divorce Act, yes. The guidelines will apply to any application for child support in a divorce proceeding or an existing application made after May 1997.
For provinces which do not follow the Divorce Act legislation (ie: Quebec), alternative legislation is put into place. If you are unsure of which legislation applies to you, it is best to get in touch with a qualified family law lawyer in your area.
Yes. Revenue Canada has a form for both parties to sign stating that the new tax rules will apply to their agreement or court order beginning after May 1997. However, once parties have opted into the new guidelines, they cannot opt out.
Payment schedules can be found at the Provincial Payment Tables section of the Department of Justice's Internet site. While there is not a lot of variation from province to province, the different tables take different provincial taxes into consideration.
No. Scheduled payments are dependent on income and will vary as such. If a change in income occurs, an increase or a decrease to the payment schedule is typically granted.
There are 4 categories of special child-related expenses which the court can add to the table amounts if the judge finds that they are "reasonable and necessary" in light of the needs of the children and the means of the parents. The 4 categories are:
For starters, different rules apply to these situations and you need to be sure which of the two apply to you.
"Split" custody is the situation where there is more than one child and each spouse has custody of one or more of them. That is, the custody of the children is spread out, or split, between the two parents.
"Shared" custody is "where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year". This is a new term for family law lawyers and it is not yet clear how this will be interpreted. For example, there is considerable uncertainty over how the courts will be figuring out what "40 per cent of the time over the course of a year" means. Does this include time when the children are in school or away at summer camp? Is there a difference if the camp is a day camp or an overnight camp? If the camp is paid for jointly, will the time there be counted equally?
For practical purposes where there is split custody the courts will figure out how much each parent would have had to pay for child support if the child was in the custody of the other and then subtract the smaller payment from the larger one to figure out the difference. The parent who would have had to make the larger payment will then pay the "difference" to the other as the proper amount of child support. Once this is calculated, the court will then look at the "add ons" to see who should be paying whom for those.
So the first step is to figure out the difference in child support each parent would pay if the child was in the custody of the other parent and then figure out who should pay how much to whom for the special or extraordinary expenses ("add ons").
Where there is shared custody the situation is different and more complicated. The Guidelines provide as follows:
Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account:
As a result, where there is shared custody the court must determine what each parent would have had to pay for child support if the child was in the care of the other, then determine what the "increased" costs would be because of the "shared custody arrangements" and then take into consideration the "condition, means, needs and other circumstances of each spouse and of any child for whom the support is being sought." It is this last step which will create the greatest amount of uncertainty because it seems to put the courts back into the position before the Guidelines of looking into the "conditions, means needs and other circumstances of each spouse" as well as for the child. The specific wording makes it definitive that in the case of shared parenting. The court will analyze to a lot more than the gross income of the non-custodial parent and will analyze the income and circumstances of the other spouse.
Yes. There are lots of sites available for information about the new Child Support legislation, including information about the changes to the Income Tax Act and the Divorce Act as well as the Tables setting out the amount that should be paid for support depending upon the income of the payer, the number of children, and other factors.