A look at child support laws and legal information in Ontario. Want to reach us? We can be found at: 1120 Finch Ave W, North York, ON M3J 3H7 (416) 650-1300 http://www.torontodivorcelaw.com

1. Child Support before May 1997
-how support was calculated: child budget/children expenses
proportionate between parties;
Result:
- decisions unpredictable
- varying across Canada
- no hard and set rules
- no guidelines
Tax:
- child support was taxable to the recipient and deducible to
the payor
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2. Child support after May 1, 1997
• Federal Government introduced Child Support Guidelines and
amended the Divorce Act. As a result:
1. child support is not taxable or deductible;
2. any child support order made on or after May 1, 1997,
must be in accordance with the FCSG.
• However, for those recipients who are receiving child
support pursuant to an Order or Agreement dated on or
before May 1, 1997, must continue to pay tax on support and
payor can deduct support paid until the Order/ Agreement is
varied.
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3. Purpose of FCSG
• S.1(a) of the FCSG - The objectives of the Guidelines are:
(a) “to establish a fair standard for children that ensures that they
continue to benefit from the financial means of both spouses after
separation;
(b) to reduce the conflict and tension between the spouses by making
the calculation of child support Orders more objective;
(c) to improve the efficiency of the legal process by giving courts and
spouses guidance in setting the levels of child support orders and
encouraging settlement; and,
(d) to ensure consistent treatment of spouses and children who are in
similar circumstances.
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4. Who Can Claim Support?
• under the Divorce Act only a spouse or former spouse can
claim support
• a child has no standing to bring a claim pursuant to the
Divorce Act/ can do so under provincial legislation
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5. Who is entitled to Support?
• under Divorce Act – s. 15 (1) – child must be a “child of the
marriage”
• Definition – “child of the marriage” – (s.2(1)) child of two
spouses (former spouses), even if one parent is not the
biological parent (but stands in loco parentis) who at the time
is:
• (a) under the age of majority (18) and has not withdrawn
from parental control;
• (b) is age of majority and over, and under parental control ,
but unable bc of illness, disability, or any other cause to
withdraw from parental charge or to obtain the necessities of
life
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6. • under the Family Law Act – s.31 (2) - for child to be eligible,
the child must be:
• unmarried;
• a minor (under 18 yrs of age) or enrolled in a full time
program of education; and,
• if 16 yrs or older still has not withdrawn from parental control
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7. Obligation to Pay Support
• either the child’s parents or individuals who are loco parentis
to the child
• loco parentis – spouse or former spouse who “stands in the
place of a parent” (s.2(2) of the Divorce Act (step- parent) /
assumes the role of a parent
• under the FLA – s.1(1) – a person who has demonstrated a
“settled intention to treat a child as a child of his/her family
(not foster parent).
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8. • Chartier v. Chartier (1998) SCJ No. 79 (S.C.C.) – test for
settled intention – objective test – case by case:
• all factors are relevant and must be considered in
determining a child’s relationship with parent;
• court looks at financial provision / social interaction/ role in
discipline and education;
• person cannot terminate the parent relationship – right
belongs to the child;
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9. How the Guidelines Work
• the tables and rules for the determination of child support are
set out in the Family Law Act and the Divorce Act - child
support guidelines;
• in Ontario there is the federal child support guidelines
(divorce act) and the Ontario child support guidelines (family
law act) – claim support under both acts
• depends if advance case under the divorce act or family law
act/ minor differences under the wording of the two sets of
guidelines/ amounts of child support under provincial is the
same as federal
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10. Amount of Child Support
• tables are formulated based on mathematical formula/ based
on average spending on children in families at difference
levels of income
• when looking at the tables, only consider the payors income
(tables only show the basic s. 3 support) you must determine
the total taxable income for the year for the payor
• the total income is by reviewing line 101 of your income tax
act and making the necessary deductions and additions as per
Schedule III of the Guidelines
• usually look at line 150 income as set out in Income tax
return, but income for support purposes may be greater than
disclosed income on line 150
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11. • Presumptive Rule – s.3(1) of the FCSG –
“Unless otherwise provided under the Guidelines, the amount
of support order for children under the age of majority is-
(a) the amount as set out in the applicable
table, according to the
number of children under the
age of majority to whom the order relates and
the income of the spouse against
whom the order is
sought; and,
(b) the amount, if any, determined under s. 7;
*

12. Income over $150,000
• s. 4 of the FCSG - for incomes over $150,000, the amount of
support is determined as follows:
• a. Amount as determined under s. 3 of the FCSG (based on
Table); OR,
• b. If the court believes this amount is inappropriate, the
amount of support as determined by the Table for the first
$150,000 and wrt the balance of the payor’s income, a
discretionary amount having regard to the condition, means,
needs and other circumstances of the children who are
entitled to support and the financial ability of each spouse to
contribute to the support of the children;
• c. the amount, if any, as determined under s. 7 of the FCSG.
*

13. • Presumption in favour of guideline amount
• Need “clear and compelling evidence” to depart from
guideline amount
• Payor must rebut presumption
• Large quantum of support by itself not a reason to depart
from guideline amount
• Consider child care budget
• Francis v. Baker (1998) SCJ no. 52 (S.C.C.) – need to balance
principles of predictability, consistency and efficiency with
fairness, flexibility and recognition of the actual condition,
needs, means and other circumstances of the children.
*

14. Income that Fluctuates
• S.16 of FCSG – Subject to s. 17-20 (ie. Pattern of income, pre-
tax corporate income, imputing income, non-resident),
annual income for support purposes is based on “total
income” in T1 General ITR and adjusted in accordance with
Schedule III (adjustments to income);
• S.17 of the FCSG - if income fluctuates, court can average over
the last three years and determine an amount that is fair and
reasonable;
• Discretionary by court ;
• Onus on payor to deviate from s.16 of the FCSG (i.e.. Line 150
etc.);
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15. Corporate Income
• s.18 of the FCSG– a court may include all or part of the
company’s pre-tax corporate earnings (or retained earnings in
corp) if the court is of the opinion that income is available to
the payor for the purposes of paying support;
• court can also add back into income, wages paid to former or
current spouse from corp – amount that reflects the work
performed by the spouse for the corporation
*

16. Impute Income
• s.19 of FCSG – court may income if the parent is intentionally
underemployed or unemployed;
• impute income because both parents have an obligation to
support the children;
• parent must earn what he is capable of earning;
• don’t need to prove that the payor is intending to avoid his
support obligations;
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17. Special or Extraordinary Expenses
• In addition to s. 3 support, payors must also pay their share of
any special or extraordinary expenses (s.7 expenses);
• s. 7 expenses are to be shared by the parties in proportion to
their incomes, after deducting from the expense, the
contribution from the child, if any, and any “ subsidies,
benefits, or income tax deductions or credits in relation to the
expense”;
• payor pays the net proportionate share of the expense
*

18. • s. 7 FCSG - Special or Extraordinary expenses:
- child care expenses (must be incurred as a result of the
parent’s employment, illness, disability or education or
training for employment);
- portion of medical and dental insurance premiums
attributed to the child;
- health related expenses that exceed insurance
reimbursement (ie. Orthodontic treatment, counseling etc.)
- extraordinary expenses for primary or secondary school;
- expenses for post-secondary education;
- extraordinary expenses for extracurricular activities
*

19. • Two part test to determine if a claimed expense is to be
included in the quantum of child support;
• The court must determine if the expense is “reasonable and
necessary” ;
• “necessary” in relation to the best interests of the child;
• “reasonable” having regard to the means of the spouses and
those of the children and the family pattern of spending
before the separation ( only for those expenses outside of the
specified expenses);
*

20. • Two categories of special expenses, the expense (not the
activity) must be “extraordinary”:
- primary and secondary school (or
educational program)
- expenses in relation to extracurricular
activities
• s. 7 (1.1) definition of “extraordinary expense”:
(a) The expense is extraordinary if it exceeds what the
recipient spouse can reasonably cover;
(b) Even if the recipient spouse can cover the expense, still
may be extraordinary, if it exceeds what the recipient
spouse can reasonably cover, the nature and number of
educational programs or extracurricular activities, special
needs and talents of child, overall cost of the program or
activity;
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21. • if child support is a large amount, court may not order s.7
expense because not extraordinary
• extraordinary extracurricular expenses often a source of
contention – but the test is if the expenses is necessary and
reasonable;
• expense can be anticipated bf the court orders contribution;
• expense can also be retroactive if payor does not pay;
• court can order a fixed amount paid based on the activity or
the court can order a % based on future activities;
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22. • Lewi v. Lewi (2006) OJ No. 1847 (CA)- court examined what
contribution adult child should make to post- secondary
education expenses;
• court has a broad discretion to consider the amount to be
contributed by the child;
• have to consider the means of the child and those of the
parent;
• no formula to consider the amount to be paid by the child;
*

23. • extracurricular activities – s. 3 base support includes some
allowance for usual or ordinary extracurricular activities;
• Although s. 7 does not specify that consent is required bf
enrolling a child in an extracurricular activity, the courts have
held that custodial parents cannot just enroll the children in
all kinds of expensive extracurricular activities and then
demand contribution from the payor;
• s. 7 (1) (f) is unusual extraordinary or special expenses for
extracurricular activities;
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24. EXCEPTION TO PRESUMPTION
Exceptions to presumption that the quantum of child support
is based solely on the table amount (court has discretion to
determine the amount of support):
- Adult child
- payor income over $150,000
- loco parentis
- shared/ split custody
- Undue hardship
*

25. ADULT CHILD
• s. 3(2) of the FCSG - if the child is over the age of 18, the
amount of support is determined as follows:
• as per the FCSG as if the child was a minor;
• if the amount if inappropriate, an amount that the court says
is appropriate having regard to the means, needs and other
circumstances of the child and the ability of each spouse to
support the child;
*

26. • expectation that adult children going to school are going to
contribute something to their support;
• court can consider if s. 3 (2) guideline support is appropriate
for a adult child when considering s. 7 expenses for adult child
(i.e.. Child goes away to school). No standard set formula.
Maybe four months out of the year when the child resides at
home or partial during the yr because the recipient must
maintain the house. Court can still order full guideline
support;
• no absolute cut off age for child support
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27. • if adult child has sufficient income or assets, even if in school
may not be entitled to support depending on his needs and
the means of the parents;
• guideline support may be inappropriate if adult child has
resources;
• if adult child rejects parent, some courts have refused to
grant adult child support. Not the case for minor kids, must
continue to pay support even if they have rejected their
parents;
*

28. s.5 - support by step parent
• obligation of biological parent and loco parentis to support
child;
• court may vary the quantum of support;
• primary obligation is biological parent with step parent also
contributing;
• No set rules as to how to calculate the support obligation
from a step parent (may get full guidelines from both/ set off/
difference etc. );
*

29. • income of recipient – irrelevant in most cases
except for the following:
- s. 7 expenses
- shared custody
- split custody
- income over $150K
- undue hardship
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30. Split Custody
• s. 8 of the FCSG – Split Custody
• Both spouses have full custody of one or more of the children;
• amount of support is the difference paid by each spouse to
the other (eg. one spouse’s support obligation is $1000 per
month, the other spouse’s obligation is $400 per month, the
spouse with the greater income will pay $600 to the other
spouse);
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31. shared custody – 40%
• S. 9 of the FCSG - if one spouse has the right to access or
custody of child for 40% or more of time over the year,
quantum of support based on amount set out in table,
increased cost of shared custody arrangement and condition,
means, needs and other circumstances of each spouse and of
the children;
• no single method of determining 40%– hours/ days - look at
hours, discount time at school friends etc. – start from the
assumption that the custodial parent has 100%)
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32. • Contino v. Leonelli- Contino (2005) S.C.J. No. 65 (S.C.C.) – child
support in shared custody situation requires the exercise of
discretion and not just a set – off;
• may be a starting point and then gross up because of the
increased cost with both homes – don’t want to have a large
difference in the standard of living between both houses-
court has discretion;
• just because a payor reaches a 40% threshold does not
necessarily mean that support is reduced
*

33. The amount of support is determined as follows:
• Determine if the 40% threshold has been met;
• Determine the parties incomes for support purposes -
amount set out in Applicable Table for each spouse;
• Increased cost arrangements – examine budgets and actual
expenditures wrt children;
• Condition, means, needs of each spouse and the child of the
marriage – broad discretion;
• examine actual spending patterns wrt children/ ratio of
incomes/ net worth of parties/ standard of living for the
children in each household; *

34. Hardship
• s. 10 of the FCSG – court can order a different amount of
guideline support if the amount results in hardship;
• Circumstances that may cause a payor to suffer undue
hardship in paying support: high family debts, high cost of
access, legal obligation to pay support to another person –
high threshold to meet the test;
• s. 3, 4 (income over $150k), 5 (loco parentis), 8 (split
custody), 9 (shared custody) – may apply to vary the amount
of support if undue hardship;
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35. • firstly, the applying spouse must have a standard of living that is
lower than the recipient ;
• hardship must be exceptional or excessive / very high threshold;
• List in s. 10(2) is not exhaustive (includes the following);
• Circumstances relate to payor not recipient at this stage;
• If hardship – court then considers the standard of living of each
household. Payor must have lower standard of living than
recipient. Must consider all income earners in household;
• If yes, then determine the amount of support to be paid. Need to
look at means and needs of the parties (income and expenses of
both households)
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36. PRIORITY OF CHILD SUPPORT
• child support has priority over spousal support;
• The quantum of child support may impact the quantum of
spousal support;
• As a result, any future change in child support, may result in a
change in the quantum of spousal support.
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37. ONGOING INCOME INFORMATION
• s. 25 - under the FCSG, as long as support is owing, the
recipient spouse may obtain, on request (not more than once
per year), information wrt income from the payor spouse;
• recipient spouse income – (important wrt s. 7 , split or shared
custody) also must provide information wrt her income upon
request
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38. • Any existing Order and new Orders made after March 2010
(not apply to existing Agreements)- the payor must
automatically provide his/her income information (unless the
parties agree otherwise) within 30 days of the anniversary of
the Order (s.24.1 and s.25.1 of the FCSG);
• Recipient must also automatically provide her information (s.
7, split, shared custody) if her income was necessary to
determine support;
• Must provide Income Tax Return and Notice of Assessment
and any other document to substantiate your income as set
out in s. 21 of the FCSG;
*