CHILD SUPPORT GUIDELINES
Amount Calculation Guidelines

Introduction
In this pamphlet we help you to understand how an appropriate amount of child support is determined when parents separate. Significant changes have occurred in Ontario's child support laws in recent years. These changes make it very important for anyone who is paying or receiving child support to speak to a lawyer regarding how these changes will affected them.

Background
Each parent is liable for the support of their children before and after a separation. In Ontario, there are 2 laws that govern how the appropriate amount of child support is determined. The Divorce Act is a federal law that governs divorce proceedings. It provides for child support between parents who are married and asking for support as part of their divorce. The Family Law Act is a provincial law. It provides for child support between parents when child support is an issue, but not as part of a divorce.

Under the Family Law Act, support can be ordered for an unmarried child up to the age of 18 years. If the child is 18 years or over, support can also be ordered for them if they are enrolled in a full-time program of education or are unable to support themselves.

An order for child support is not limited to the natural child of both spouses. A child who is not the natural child of one of the spouses may still be entitled to be supported by that person if the spouse treated that child as a child of their family. If the child is 16 years of age or older, and has voluntarily withdrawn from parental control, there is no further obligation to support that child.

Changes in the way an appropriate amount of child support is determined came into effect, under the Divorce Act on May 1, 1997 and under the Family Law Act on December 1, 1997. Before the changes, there was no specific method used by the courts to determine an appropriate amount of child support under either the Divorce Act or the Family Law Act. The judge hearing the case would make a decision based on all the facts of the case. Although there were some minor differences in the wording of the two Acts, the courts generally used the same approach. The amount of child support was based on the needs of the children and the ability of the parent to pay support.

Prior to the recent changes, the most popular approach to determining the amount of child support was referred to as the Paras model after the name of the case where the approach was first used. In the Paras model:
the court determined the actual expenses of the children and the total income available to the family from both parents
the court apportioned the expenses of the children between the parents in the proportion as their individual income was to the total family income
consideration was given to the claimed expenses of both parents to see what amounts were reasonable
once the support payment was determined, it was increased or decreased to allow for the income tax that the recipient will have to pay and to ensure that the children receive the amount of support each month that the Court has determined that they need

Change #1: The Taxation of Child Support
As of May 1, 1997, child support is no longer taxed as income of the recipient and those who pay support are no longer entitled to deduct the support payments from their income. These changes only affect existing orders or agreements if they are changed after May 1, 1997 or the order or agreement provides that the tax treatment will change after that date. This tax treatment applies to any new orders or agreements made after May 1, 1997 regardless of whether they are made under the Divorce Act or the Family Law Act. We have prepared a pamphlet on the Income Tax Implications of Support Payments.

Change #2: The Child Support Guidelines
In response to criticism that there was inconsistency in the amount of child support awards, the federal government instituted child support guidelines. The guidelines consist of a set of rules and tables for calculating the amount of support that a paying parent should contribute toward his or her children. The tables take into account three main factors:
level of income of the paying parent
number of children
province or territory of residence

The guidelines set the amount of support payable by a table amount based on the payor's income with no consideration of either the recipient's income or the actual expenses of the children. The table amounts are based on the average costs of raising a child. The guideline system applies to all support cases in Ontario Courts.

The stated objectives of the guidelines are:
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;
to reduce conflict and tension between spouses by making the calculation of child support orders more objective;
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
to ensure consistent treatment of spouses and children who are in similar circumstances.

Key Points about the Guidelines
There are certain aspects of the Guidelines that should be highlighted:

1. The guidelines are presumptive - this means that the support ordered by a Court must be the table amount. There are certain limited circumstances where support may be awarded in an amount different from the table amount. In any case where the table amount is not awarded, the judge must give reasons in writing for the decision to deviate from the guidelines. There are several circumstances where a judge has discretion to award an amount different from the table amount including the following:
the support payor earns income in excess of $150,000.00 per annum
the child is over 18 years of age
the parents have split custody (at least one child resides primarily with each parent)
the parents have shared custody (the child resides at 40% of the time with each parent)
the support payor is not the biological parent

2. The passing of the legislation is deemed to be a material change in circumstances - If you have an existing child support payment, either paying or receiving you should speak to us to decide whether you should make an application to vary the existing child support in light of the tax changes. It may be worthwhile to apply to the Court to have the order changed to the guideline amount based on the payor's income. It would seem that the Courts have interpreted this to mean simply that the change of legislation is a triggering event and the court will look to see whether there is "a material change in the circumstances" of the payor or recipient to give the Court power to make the change.

3. The amount of child support awarded can be higher than the guideline amount - for certain special or extraordinary expenses, the court will "add-on" to the guideline amount. The cost of add-ons will be shared between the parents based on their incomes on a proportional basis.

4. The amount of child support can be lower than the guideline amount - To lower the support below the guidelines, judges must determine that the guideline amount of support would result in undue hardship to the payor. This will be very difficult to prove to a Court and will involve a comparison of the standards of living of the support payor and the child. The circumstances where the child support ordered will be lower than the guideline amount will be very limited.

5. There are significant requirements for financial disclosure - both spouses will be required to provide:
Copies of every personal income tax return filed for the 3 previous taxation years;
Copies of every notice of assessment or re-assessment issued for the 3 previous tax years;
A statement of earnings or letter from the employer setting out the current rate of annual salary and remuneration;
Financial statements of the business or practice for the 3 previous taxation years;
Confirmation of partnership income, draw and capital in a partnership for the 3 previous taxation years;
Financial statements of any corporation controlled by a spouse and its subsidiaries for the 3 previous taxation years.

6. The guidelines are applied in a different fashion in cases of split custody or shared custody. "Split" custody is defined as the situation where each parent has custody of one or more children. In other words some of the children reside with the father and some of the children reside with the mother. "Shared" custody is defined as the situation where the spouses share physical custody of a child in a substantially equal way.

7. Priority is given to child support over spousal support. Courts must give priority to child support in determining child and spousal support obligations.

8. There are circumstances under which the Court may impute income. If the Court considers it appropriate, income may be imputed (i.e. deemed to be earned even if it wasn't) to a spouse in circumstances where:
A parent is intentionally under employed or unemployed, other than where the under employment or unemployment is required by the needs of a child of the marriage;
The spouse is exempt from paying Federal or Provincial income tax;
The spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
It appears that income has been diverted to affect the level of child support that would otherwise be determined in accordance with these guidelines;
The spouse's assets are not reasonably utilized to generate income;
The spouse has to failed to provide income information when under a legal obligation to do so;
The spouse unreasonably deducts expenses from income.

After the court has made the support order, the support payments will be monitored and enforced by the Family Responsibility Office (FRO). The recipient must deliver a completed filing package to the FRO. We have prepared a specific pamphlet on the role of the FRO.

For More Information
Since August 25, 1998, a new document called Annotated Federal Child Support Guidelines: A List of Caselaw is available for consultation on the Internet. It contains the names of various cases in which the Federal Child Support Guidelines have been applied and interpreted. Please note that these decisions can be a useful source of information for the general public. Please see the following address: http://canada.justice.gc.ca/Orientations/Pensions/ Child/guide/glp_en.html

In Ontario, further information regarding Child Support Guideline activities provided by the province can be obtained by calling 1-800-980-4962.

Revision Date: January 11, 2000.

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