Child Support

How is Child Support Determined?

In Canada, the Federal Child Support Guidelines (“Guidelines”) lay out a framework for the determination of child support. The total child support owing, pursuant to ss. 3 and 4 of the Guidelines includes:

1. child support in accordance with the applicable table; and
2. an amount, if any, for any special and extraordinary expenses under s. 7

The Guidelines require specific income information from a payor so that child support may be determined pursuant to set tables. The tables determine child support according to a person’s income and the number of children that they have.

For example, according to the Ontario table, if a payor earns $100,000 per year, that person would owe child support of $932 per month for one child or $1517 per month for two children. If a payor earns $1,000,0000 per year, that person would owe child support of $7,787 per month for one child or $12,505 per month for two children. For incomes over $150,000, there is some discretion as is further described below. Child support is paid net of tax.

While you may look at the table to determine child support owing, it’s easier to use an online child support calculator such as the one at the Department of Justice. If you are using an online tool, you should ensure it includes the most recent updates because the amounts may change over time.

Section 7 Expenses

Section 7 of the Guidelines allows a court to order payment for a child’s expenses above and beyond the table amount, which are both reasonable and necessary. There is a list of expenses in s. 7 which include things like childcare, health costs, educational costs or “extraordinary expenses for extracurricular activities”. This may include activities such as hockey or piano lessons. What is a reasonable and necessary expense for one family is relative to their incomes. Private school, for example, may be reasonable for some families, but is not always ordered to be an appropriate s. 7 expense. Section 7 expenses are paid proportionate to the parties’ incomes. If for example one spouse earns 80% of the net disposable income, that person would likely pay 80% of the s. 7 expense.

Child Support for Incomes over $150,000

Section 4 of the Guidelines contain what is sometimes informally referred to as a “soft” upper limit for incomes over $150,000. Section 4 of the Guidelines, in essence, states that if a payor’s income is over $150,000, the court may apply the table amount, or it could be some other amount if the table amount is “inappropriate.” This means that child support could be adjusted upwards or downwards. The word “inappropriate” in s. 4 may be interpreted to mean “unsuitable”^[1] after considering the “conditions, 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.”

It is possible that a payor who earns $200,000, for example, may argue that child support should not be fixed strictly in accordance with the table amount pursuant to s. 4 of the Guidelines. While s. 4 technically does state that the court may determine a child support amount which is different than the table amount for incomes over $150,000, for incomes which are close to $150,000, this argument is not likely to be successful. In fact, courts routinely order child support to be paid in the table amount for incomes up to $1,000,000 and they may order child support to be paid in accordance with the tables for incomes even beyond $1,000,000.

For any child support determination, even for incomes beyond $1,000,000, the presumptive amount payable is the table amount and the payor must rebut that presumption to demonstrate why the table amount may be inappropriate.^[2] A child expense budget may be used in these cases.

Child Support Adjustments

Shared parenting schedules, where children reside equally with both parents, are common. In these cases, there may be a set off of child support obligations (the higher income payor’s child support is reduced by the lower income spouse’s obligations) or each parent pays child support to the other.^[3] Section 9 of the Guidelines states that if each spouse exercises not less than 40% of the time with the children over the course of a year, child support may be adjusted. A court will determine each spouse’s child support obligation according to their income and then adjust child support up or down, depending on the circumstances.

Undue Hardship

It is possible pursuant to s. 10 of the Guidelines to seek a reduction of child support based on undue hardship. This is not an easy test to meet and a claimant must demonstrate that their standard of living would be lower than the household where the child resides. An example of where a reduction may be reasonable is in mobility cases, where one parent moves away with a child and the other parent must incur travel expenses to be able to see a child.

Theory and Purpose of CSGs

We are often asked questions about why the Guidelines exist as some payors feel the amount of table support isn’t reasonable in their circumstances. It may assist to understand why the Guidelines arose in the first place and the theory behind this legislation. It’s important to recognize that child support is the right of the child, not of the recipient. Section 1 of the Guidelines explains the objectives:

1. to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;
2. to reduce conflict and tension between spouses by making the calculation of child support orders more objective;
3. 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
4. to ensure consistent treatment of spouses and children who are in similar circumstances.

Before the Guidelines were in place, child support was difficult and expensive to determine. It required parties to bring a child’s budget and income information to court and then the judge would make an order that was appropriate in those specific circumstances. Judges differed in their orders and there were many inconsistencies in terms of how child support was determined. It was also cumbersome and expensive for the parties as they had difficulty determining in advance what amount would be owing. When the Guidelines came into force in 1997, they brought a great deal of clarity and relief for many because child support suddenly became much more predictable.

Retroactive Child Support and Variations

It is possible to seek child support retroactively^[4], or variations of child support (retroactively or on an ongoing basis) if there has been a change sufficient to warrant an adjustment. These are large topics which will be covered in separate blog posts.