The
way in which child support following family breakdown is calculated in Canada changed
significantly on 1 May 1997. On that date, the Federal Child Support Guidelines(1) came into force, following amendments to the
Divorce Act enacted earlier that year.(2)
Those amendments enabled the federal government to establish the new system by regulation.
The reach of the federal Guidelines is broader than child support under the Divorce
Act,(3) however; most provinces (the
exception is Quebec, which has developed its own Guidelines) have adopted the federal
Guidelines as they stand, or slightly modified. Thus, the Guidelines now apply in
situations of family breakdown, everywhere in Canada but Quebec, whether or not a divorce
is at issue.
The Guidelines
espouse four objectives:
To ensure children a fair
level of support so that they will continue to benefit from the financial means of both
parents;
To reduce conflict between
separated parents by replacing the previous case-by-case litigation with a more objective
method of calculating child support;
To improve the efficiency of
the legal process by providing guidance to courts and parents regarding appropriate
support levels and encouraging settlement; and
To ensure consistent
treatment of parents and children who are in similar circumstances.(4)
The Federal
Guidelines are based on a concept new to Canadian law: in general, only the income of the
paying parent is relevant to the amount payable. It is assumed that the recipient parent
will, as a matter of course, make a contribution to the support of the children that is
typical of a person in his or her circumstances. Except in rare cases of undue hardship,
the household income of each of the parents is not taken into account.(5) Thus, tables in the Guidelines set out the basic amount
that a paying parent should contribute in view of his or her income and the number of
children. There are tables for each province, adjusted for the differing levels of
provincial and federal income tax.
The basic
amount of support as established by the tables may be adjusted for specified extraordinary
or special expenses, provided they are reasonable and necessary in light of the needs of
the children and the means of the parents and the child. In making such adjustment, the
income of the recipient parent and the family’s spending pattern before separation
will both be taken into account.
The most
important specified expenses are:
Child care expenses (net of
the tax benefit);
Medical and health-related
expenses not covered by insurance plans;
Extraordinary expenses for
primary or secondary school education, or for special programs;
Expenses for post-secondary
education; and
Extraordinary expenses for
extracurricular activities.(6)
The
Guideline’s provision for extraordinary or special expenses has caused considerable
difficulty in interpretation and has led to conflicting caselaw.
Shared custody
is another issue that has caused difficulty in interpretation and has led to conflict
between parents. Recognizing that both parents are often significantly involved in their
children’s lives, the guidelines provide that where one parent has access to, or
physical custody of a child for 40% or more of the time, this should be reflected in the
amount of the child support. To make the necessary calculation, three factors are
relevant: the table amounts for each parent, the increased costs of the shared custody
arrangements, and the general circumstances of each parent and child. Questions have
arisen as to how the time spent should be measured in assessing whether the 40% threshold
has been met. There is also considerable anecdotal evidence suggesting that conflict
results as some parents strive to meet the 40% parenting time level as a means of lowering
the amount of child support payable.
The Federal
Guidelines have already received parliamentary scrutiny. In 1997, to speed passage of Bill
C-41 through the Senate committee studying it, the government agreed to support an order
of reference for the Standing Senate Committee on Social Affairs, Science and Technology
to study the Guidelines at an early date. The Committee undertook this study in the winter
and spring of 1998, reporting to the Senate in June of that year.(7) It envisages its role as overseer of the Guidelines to be
ongoing and pledged to return to the issue within 18 months of the completion of that
report.
The Senate
Committee concentrated its attention on the two problematic issues noted above:
extraordinary or special expenses and shared parenting. It recommended that there be a new
definition of extraordinary expenses to clarify the intent of the Guidelines, proposing
that they be confined to "expenditures that exceed what would be considered typical
amounts for parents at comparable income levels to spend for those purposes."(8)
In canvassing
the issues related to shared parenting, the Committee recognized the financial needs of
both parents: the costs of the primary custodial parent are fixed and do not decrease when
the access parent exceeds the 40% time threshold; however, the costs of the latter parent
do rise along with his or her parenting time. This is a problem particularly for low and
middle-income parents. The Committee recommended that the government examine other methods
whereby parenting costs could be more objectively apportioned and the position of
lower-income primary caregivers could be protected.(9)
The Committee
also made recommendations concerning the treatment of support for adult children attending
post-secondary institutions, the undue hardship provision, recognition of access costs,
and various aspects of the enforcement of child support awards.
The Divorce
Act requires the Minister of Justice to undertake a comprehensive review of the
Guidelines and to table a report thereon within five years of their coming into force
(i.e. by 1 May 2002).(10) The Department is
therefore monitoring their implementation closely and has devised a comprehensive research
framework to measure their impact.(11) The
Senate Committee, however, has urged the government to introduce amendments to the
Guidelines when the need becomes evident, rather than waiting for the results of the
comprehensive review; however, it has also urged the government to consult with the
Committee before making any substantive changes.(12)
(1) SOR/97-175.
(2) Bill C-41, An Act to amend the Divorce Act, the Family
Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension
Diversion Act and the Canada Shipping Act. S.C. 1997, c. 1. Assented to 19 February 1997;
in force 1 May 1997.
(3) Divorce Act, R.S., 1985, c. 3 (2nd Supp.)
(D-3.4, as amended).
(4) Guidelines, section 1.
(5) To succeed in reducing the amount of child support on
the ground of undue hardship, a paying parent must establish that his or her household
will have a lower standard of living than the household of the recipient parent. See
Guidelines, section 10.
(6) Ibid., section 9.
(7) The Standing Senate Committee on Social Affairs,
Science and Technology, The Federal Child Support Guidelines: Interim Report, June
1998.
(8) Ibid., Recommendation 4, page 8.
(9) Ibid., Recommendation 6, page 12.
(10) Divorce Act, section 28.
(11) The address of the Department of Justice home page
for child support is: