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04 DEC 2018

Three important things to know about basic monthly child support in Canada

Joanna Harris

Associate

Three important things to know about basic monthly child support in Canada
In Canada, the federal and Ontario governments share responsibility for family law in Ontario. Some child support guidelines are under federal law, while others are under provincial law, writes Joanna Harris of Miller Thomson. 

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If you are divorced or have applied for a divorce, the Federal Child Support Guidelines apply; if you and your partner were never married to each other or you were married and have separated, then the Ontario Child Support Guidelines apply (collectively the “Child Support Guidelines”).

In general, the Child Support Guidelines differentiate between the following two components of child support payments:
  1. a basic amount of child support set out in child support tables (the “Basic Monthly Amount”); and
  2. an amount of child support in respect of special or extraordinary expenses, if any (the “Section 7 Expenses”).

In situations where the payor’s income is over $150,000, the court may also consider the amounts that the court considers appropriate and the financial ability of each spouse to contribute.

In this piece, we consider parents’ obligations in respect of the Basic Monthly Amount. A subsequent piece will consider parents’ obligations in respect of the Section 7 Expenses.

1. Who is Obligated to pay Child Support

In general, every parent has an obligation to provide support for his or her child to the extent they are able. A court may order a person to provide support for his or her dependents and determine the amount of the support.

2. Calculation of the Basic Monthly Amount

The objective of the Basic Monthly Amount is to make the quantification of child support predictable, uniform, and equitable for the majority of cases.

The Child Support Guidelines include child support tables that determine a payor’s monthly payment obligation based on that payor’s annual income and the number of children under 18.

There is a presumption in favour of the table amounts, but the monthly child support payments may be adjusted in limited circumstances, such as where there are special provisions in a written agreement, the payee is suffering undue hardship, and where custody of, and right of access to, the children is split or shared.

Updated child support tables, which set out the Basic Monthly Amounts, came into effect on November 22, 2017. Some sample applications of the updated child support tables to determine the Basic Monthly Amount are as follows:

Annual Income
Number of Children
Basic Monthly Amount
$50,000
2
$755
$100,000
2
$1,471
$150,000
2
$2,077
$500,000
2
$6,277
$1,000,000
2
$12,277

At the time of writing, a Child Support Table Look-up is available online here.

3. How is a Payor’s Level of Income determined?

A payor’s income for the purposes of the Child Support Guidelines is, generally, based on the sources of income set out under Total Income in a T1 General form issued by the Canada Revenue Agency, subject to adjustments prescribed in the Child Support Guidelines.

Each source of income is considered, including employment income, dividends, interest and investment income, partnership income, rental income, capital gains, business income, professional income and commission income. The income is adjusted by certain additions and deductions prescribed in the Child Support Guidelines.

In circumstances where the adjusted income does not give a reliable picture of the parent’s annual income, the court has a broad discretion to “impute”, or attribute, income for the purposes of determining child support. The Child Support Guidelines include a non-exhaustive list of circumstances where a court may impute income. For example, a parent cannot avoid child support obligations by a self-induced reduction of income.

Recent court cases have imputed income in the following circumstances:

  • The court imputed income of $250,000 to a father where he failed to provide full financial disclosure, and an expert valuator’s report showed his company to have excessive retained earnings with him having withdrawn significant funds for personal use. (Bousfield v. Bousfield)
  • The court imputed income of $230,000 to a father based on his lack of disclosure, his lifestyle, improperly deducting personal expenses from his corporate earnings and his overall failure to explain how his income is calculated. (E.K. v. N.B.)
  • The court imputed income of $488,000 to a father by apportioning to him a significant amount of his business’ undistributed management fees. (Galea v. Galea)
  • The court imputed income of $1,000,000 to a father where he had unreasonably deducted expenses from income, such as personal expenses paid by his business. (Halliwell v. Halliwell)

It should be noted that the burden of proof is on the party seeking to impute income to the other spouse, but courts draw adverse inferences against parties who fail to provide full financial disclosure.