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Family Law: Marriage Breakdown or

Breakdown of a Common Law Spousal or
Same-Sex Partner Relationship

2. Child Support

This issue arises where there are children of a relationship, regardless of marriage. The entitlement to child support belongs to the children of the relationship, as opposed to the spouse with whom the children reside or primarily reside.

The first issue to be determined is that of who is a “child”. In most cases, a child will be either:

  1. under the age of majority, who has not withdrawn from the charge of his or her parents; or

  2. the age of majority or over, and under the charge of his or her parents, but unable by reason of illness, disability or other cause, to withdraw from the charge of his or her parents or to obtain the necessaries of life.

The next step is to consider whether the children will primarily reside with one spouse. If so, the calculation of the amount of child support payable by the non-custodial spouse is relatively straightforward. The basic monthly amount of child support is determined by the tables of the Child Support Guidelines introduced in May of 1997, by reference to the annual gross income of the payor spouse. The income of the recipient spouse to whom the support is payable on account of the children is not taken into consideration in determining this basic amount. Significantly, “income” is quite expansively defined in the Child Support Guidelines, and may allow for an attribution of income to the payor spouse, for example, having regard to the payor spouse’s historical pattern of income.

Once the basic monthly amount of child support is calculated, it may be appropriate to calculate an “ add-on” amount. The circumstances in which this amount will be payable are quite limited, and take into account the necessity of the expense in relation to the children’s best interests and the reasonableness of the expense, having regard to the means of the spouses and those of the children and to the family’s spending pattern prior to the separation. These special or extraordinary expenses which may be the subject of an “add-on” include the following:

  1. child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education, or training for employment;

  2. extraordinary expenses for primary or secondary school education or for any educational programs that meet the child’s particular needs;

  3. expenses for post-secondary education; and

  4. extraordinary expenses for extra-curricular activities.

If an “ add-on” amount is payable, the amount of it is generally determined by the spouses paying for the expense in proportion to their respective incomes, after deducting from the expense the contribution, if any, from the child.

Even after the total monthly amount of child support is calculated, it is subject to future variation. This variation is intended to be automatic, as a result of the payor spouse’s obligation pursuant to the Child Support Guidelines to provide to the recipient spouse ongoing financial disclosure. Generally, this obligation of disclosure will be triggered on the written request of the recipient spouse. If the recipient spouse’s income is necessary to determine support, such as when add-ons are payable, that spouse will have similar disclosure obligations. This obligation on the part of the recipient spouse is also likely to exist if one of the spouses claims that child support should not be calculated strictly by reference to the tables of the Child Support Guidelines.

In order for a variation of child support to occur smoothly, it will be important that the annual incomes of the spouses are specified and that the initial support amount distinguishes between the basic amount payable and the add-on amounts, if any. In this way, variations specific to each aspect can take place as appropriate.

If it is not clear that a primary residence exists, it is necessary to examine the alternative intended arrangement of custody. For example, an arrangement of shared custody for purposes of the Child Support Guidelines is that where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40% of the time over the course of a year. If such an arrangement of custody exists, the amount of the child support order is determined by taking into account:

  1. the amounts set out in the tables of the Child Support Guidelines;

  2. the increased costs of the shared custody arrangements; and

  3. the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

Typically, it will be necessary for the spouses to complete a budget of expenses, which takes into consideration expenses incurred prior to and subsequent to separation.

If the arrangement is one of split custody, the amount of a child support order will be the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.

Because of the complications involved in calculating child support in either of a shared parenting or a split custody arrangement, a variation of the child support obligation is unlikely to be automatic. Rather, it is likely that it will be necessary to consider whether any change has occurred in the custody and residential arrangements, and then to consider any implications related to child support. Even if no change in the custody or residential arrangements has occurred, a change in the child support arrangements may be appropriate, depending upon the circumstances.

Finally, all child support agreements or orders entered into subsequent to May 1, 1997 are subject to an income tax regime introduced in conjunction with the federal Child Support Guidelines. Child support payable pursuant to those agreements or orders will not be treated as income in the hands of the recipient spouse, and the payor spouse will not be entitled to claim a deduction in respect of the payment. Agreements or orders entered into prior to May 1, 1997 are subject to the income tax treatment then in place. That is, a recipient spouse discloses on his/her income tax return the payment as income, and the payor spouse is entitled to claim a deduction. If a child support obligation dating prior to May 1, 1997 is varied subsequent to May 1, 1997, the income tax treatment of the child support payable is necessarily varied at the same time.