Child Support and Your Wallet.
Can we Duck the Guidelines?
Yes. You and your ex can agree to little or no support, and agree to your own custody terms and not involve any court or agency. Done deal.
When a court or agency is involved the guidelines kick in, which means your sweet deal goes south. An example? One of you files for divorce, or one of you seeks social assistance. The divorce court follows the rules, and the social agency, whose money you want, has a duty to try to collect child support from your ex before they spend their own coin.
The Child Support Guideline Basics
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OK, a little repetition is good because most people get this totally wrong. You and your ex can agree to little or no support, and agree to your own custody terms and not involve any court or agency. Done deal. When a court or agency is involved the guidelines kick in. |
Take a serious look at Things That Go Wrong With Divorce. A report by Specialist Colin Kennedy which spells out in plain language the critical things you need to consider about separation with children.
The Child Support Guidelines
The Federal Child Support 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 guidelines are designed to make the calculation of child support fair, predictable and consistent for the benefit of the children.
The amounts in the Federal Child Support Tables vary from one province to another because of differences in provincial income tax rates.
The tables reflect the fact that child support payments are not taxable in the hands of the receiving parent and not deductible by the paying parent.
The Federal Child Support Guidelines include other rules for using the tables, depending on the type of custody arrangement.
Under the Federal Child Support Guidelines, child support amounts can be adjusted to recognize a child’s special expenses or to prevent undue financial hardship for a parent or a child in certain circumstances.
For example, more child support might be appropriate to cover child care costs where these costs are reasonable and necessary. Or, less child support might be appropriate where the paying parent has unusually high access costs and has a lower standard of living than the parent receiving child support.
The table amounts are based on the average amounts parents spend to raise a child
Research on family spending shows there is no single fixed cost of raising a child.
Families spend more on their children as family income increases, with the proportion of family income devoted to children remaining the same across all levels of income. So the “cost of raising a child” depends on how much income, and how many children the family has.
The paying parent’s share is set in accordance with the average proportion of income that a parent at that income level spends on their children. In broad terms, the guidelines ask “what would a parent with this income usually spend on his or her children?” and support payments are set accordingly.
The receiving parent is presumed to contribute to the children in proportion to his or her income.
Parents may agree on child support amounts without going to court. Parents may agree on the amount by themselves, or with a legal advisor or mediator. When the parents file an agreement with the court, the judge will:
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There are two possible exceptions to this rule. In these two situations, the judge may order a different amount of child support. But, the judge must first look at what the guideline amount would be before adjusting the child support. The two possible exceptions are:
- special provisions; and consent orders.
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Child Support – Frequently Asked Questions
1. Do the guidelines apply to me?
The Federal Child Support Guidelines may apply if: you are married but filing for divorce; or you are already divorced. Provincial legislation may apply if: you and the other parent have never been married to each other; or you are separated, or planning to separate, but have decided not to divorce; or you and the other parent are divorced or divorcing and you both live in New Brunswick, Manitoba, Prince Edward Island or Quebec. If you have a child support order or agreement that was made before May 1, 1997, the Guidelines did not automatically change it.
2. Where can I find information on child support enforcement?
The provinces and territories are primarily responsible for child support enforcement. Each province and territory has its own maintenance enforcement program. To receive help from an enforcement program, a parent must register a child support order or agreement with the program in his or her province or territory. If child support is not paid, the program can use a number of methods to enforce the order. For example, some provinces have introduced driver’s licence denial programs. Support enforcement is important and the federal government helps the provinces and territories as much as possible given its jurisdictional limits. Two federal laws, the Garnishment, Attachment and Pension Diversion Act and the Family Orders and Agreements Enforcement Assistance Act , provide the provincial and territorial enforcement programs with tools to help them improve enforcement on behalf of the parents registered with their programs. For example, federal law allows the provinces and territories to request the screening of specified federal databanks, including those of the Canada Customs and Revenue Agency, to locate parents who are behind in their support. In addition, once the provincial and territorial programs have exhausted all other remedies, federal law allows them to ask the federal government to deny specified federally regulated licences to paying parents in “persistent arrears”. The list of federally regulated licences includes passports and certain aviation and marine licences. Go to the provincial and territorial enforcement programs.
3. What are the amounts in the tables based on?
The table amounts are based on the average amounts parents spend to raise a child. Research on family spending shows there is no single fixed cost of raising a child. Families spend more on their children as family income increases, with the proportion of family income devoted to children remaining the same across all levels of income. So the “cost of raising a child” depends on how much income, and how many children the family has. The paying parent’s contribution is set in accordance with the average proportion of income that parents at that income level spend on their children. In broad terms, the guidelines ask “what would a parent with this income usually spend on his or her children?” and support payments are set accordingly. The receiving parent is presumed to contribute to the children in proportion to his or her income.
4. Do the guidelines take into account the income of the receiving parent?
The federal guidelines are built on the principle that both parents should share the same portion of their income with their child as they would if they had continued to live together. In broad terms, the guidelines ask, “what would a parent with this income usually spend on his or her children?” and support payments are set accordingly. The receiving parent is expected to contribute to the costs of raising the children in proportion to his or her income. The standards of living of the children and the receiving parent are interrelated because they live together. Any money that the receiving parent spends on the household will also benefit the children.
5. Does a new spouse’s income make a difference in child support amounts?
Child support is the joint responsibility of both parents, not their new spouses. The guiding principle of the Federal Child Support Guidelines is that both parents should share the same portion of their income with their child as they would if they had continued to live together. The federal guidelines do not require the courts to consider a new spouse’s income, except in certain circumstances. These could include situations where the court is comparing household standards of living in cases where either parent claims undue hardship. For more information on undue hardship, please go to step 8 of Eight steps to calculating child support.
6. What happens if either parent has a second family?
Under the law, parents have an ongoing obligation to support their children even if they have new family responsibilities. But the guidelines also recognize that, in some situations, the amount of child support set in the Federal Child Support Tables, combined with other circumstances, could create undue hardship for either parent or for the children. Such circumstances could include having a second family. However, parents cannot reduce their obligations to their first families unless a comparison of both households shows that the second family would have a lower standard of living if the support payments were not reduced. In comparing household standards of living, the court can consider the income of all household members as well as the number of people in each household. If undue hardship has been proved, the court can adjust the child support amount.
7. In considering special expenses and undue hardship, does it matter what kind of custody arrangements are in place?
Yes, for special expenses, but not for undue hardship. Special expenses are considered in sole custody or split custody situations. In shared custody situations, the court will look at the needs of the child, including any special expenses, and both parents’ ability to pay, when setting a child support amount. Custody arrangements do not affect undue hardship claims.
8. Who must provide income information?
Usually, only the income of the paying parent is necessary to apply the tables. However, the receiving parent will have to provide income information in certain circumstances, such as if:
- there are special expenses;
- either parent claims undue hardship;
- there is split or shared custody;
- the child is at or over the age of majority; or
- the payer earns more than $150,000.
If income changes, either parent may decide that it is appropriate to change the amount of child support. This can be done by agreement or by court order. If a parent does not supply the documents needed to prove income, the court may order that he or she do so or face serious penalties. The penalties could include being found in contempt of court or having to pay the other parent’s legal costs.
9. Does a child enrolled in post-secondary education still qualify for child support?
The Divorce Act recognizes that, in some cases, children at or over the age of majority may continue to require support. The Divorce Act does not require parents to continue support to children at or over the age of majority who are pursuing a reasonable post-secondary education. If both parents agree that they will not continue support, then there is no legal obligation on the part of either parent to do so under the Divorce Act. However, if the parents cannot agree whether to provide support, then one parent could seek the support from the other parent. In such cases, the courts have the discretion to determine whether there is an obligation to support the child. If the court determines that a child is entitled to support under the Divorce Act , the parents may then agree on a suitable amount of child support. If parents cannot agree on the amount of support, the court will decide. The court has the discretion to apply the amount listed in the Federal Child Support Tables as if the child were under the age of majority, or to determine a different amount given the means of the child, including any income the child may receive, and both parents. ability to pay. Even before the child support reforms were introduced in May 1997, the courts had the discretion to provide child support for older children who were pursuing a reasonable post-secondary education, as well as the discretion to set an amount. Under the federal guidelines, the paying parent can request from the other parent, in writing, any current information about the status of any special expenses for education to which the paying parent contributes.
10. What are the types of orders and agreements?
Parents may make a written agreement stating the amount of child support to be paid. They may do this with or without the help of a lawyer. Parents may refer to the guidelines to see what is fair and what is in the best interests of the child. Parents can agree on child support without going to court, but it may be a good idea for each parent to consult a lawyer regarding his or her legal rights. Written agreements may be legally enforceable.
A consent order is like a written agreement, but a judge usually reviews it. Parents can use a consent order when they agree to change an existing court order or consent order. In these cases, the judge will refer to the guidelines to make sure that the amount of child support is reasonable and in the best interests of the children. A consent order is legally enforceable.
When parents cannot agree on the amount of child support, either parent may ask the court to decide this matter for them. If parents ask the court to decide, the judge must apply the guidelines, where relevant, in setting the amount of support. A court order is legally enforceable.
11. How can I change my order or agreement?
If you wish to change the amount of child support you pay or receive, and you and the other parent agree, you may:
amend your existing written agreement; or
amend your existing court order and register the new order with the court.
If you and the other parent agree to change your existing court order, it is important that you register the changes with the court.
If you and the other parent do not agree, you may ask the court to decide for you. Parents may use the guidelines or, if they cannot agree, the court must use them to determine the appropriate amount. There are two possible exceptions to this rule. In these two situations, the judge may order a different amount of child support. But, the judge must first look at what the guideline amount would be before adjusting the child support. The two possible exceptions are: special provisions; and consent orders.
12. How can I change the tax treatment of my order or agreement?
The tax rules that apply to child support changed on May 1, 1997. Under the current tax treatment, receiving parents do not include child support payments as income and paying parents do not claim child support payments as a deduction. These changes do not automatically apply to child support orders and agreements made before May 1, 1997. But, if both parents agree to apply the current tax treatment to their existing child support amount, they may file Form T1157 “Election for Child Support Payment” with the Canada Customs and Revenue Agency (CCRA). This form states that, by joint agreement, both parents want the new tax treatment to apply to their existing child support amount. If parents send this form to the CCRA, they can avoid the court process, since the face value of the order does not change. Once parents sign the form and submit it to the CCRA, the current tax treatment applies and they cannot return to the previous tax treatment.
13. If I follow the guidelines, do I still need a lawyer?
Parents may agree on child support amounts themselves, or with a legal advisor agent or mediator. When the parents file an agreement with the court, the judge will:
look at the appropriate guidelines;
find the appropriate amount; and
determine whether the amount the parents agreed on is reasonable.
Although parents may not need a lawyer to understand the guidelines, a lawyer or agent can guide parents through court procedures, advise them on which supporting documents they must provide and explain how case law applies.
14. Why are the Table amounts based on gross income?
Gross income is considered a fairer reflection of income because net income allows a large number of discretionary deductions that can make it difficult to set fair levels of support. In addition, the guidelines take into account the taxes a parent will pay.
15. Can a court take into account any special provisions in a divorce or separation agreement?
The Divorce Act recognizes that there are special situations when the amount in the guidelines may not be appropriate. For example, if the paying parent transferred the family home, without being compensated, to the other parent so the children would not have to move, the amount in the Guidelines may not be fair. Both parents would have to agree that this is the case or a judge would have to rule on the matter.
16. My former spouse is moving to another country. Will this affect child support?
If you are the receiving parent, the other parent must keep paying child support in Canadian dollars. The table for the province that you live in will apply. If you live in a province that has been designated, the federal table for your province will apply. If you are the paying parent, you must keep paying the child support amount set out in your order or agreement, in Canadian dollars. If the other parent does not continue to provide child support after moving to another country, you may wish to contact your provincial or territorial maintenance enforcement program (MEP). The MEP can give you information about enforcing a child support order when the payer lives in another country. Provincial and territorial maintenance enforcement programs.
Federal Child Support GuidelinesAs established May 1, 1997 (SOR/97-175) Federal Child Support GuidelinesP.C.1997-469 Order
His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 26.1a of the Divorce Actb, hereby establishes the annexed Federal Child Support Guidelines.
OBJECTIVES
Objectives
1. The objectives of these Guidelines are
(a) 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;
(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;
(c) 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
(d) to ensure consistent treatment of spouses and children who are in similar circumstances.
INTERPRETATION
Definitions
2. (1) The definitions in this subsection apply in these Guidelines.
“Act”
« Loi »
“Act” means the Divorce Act. (Loi)
“child”
« enfant »
“child” means a child of the marriage. (enfant)
“income”
« revenu »
“income” means the annual income determined under sections 15 to 20. (revenu)
“order assignee”
« cessionnaire de la créance alimentaire »
“order assignee” means a minister, member or agency referred to in subsection 20.1(1) of the Act to whom a child support order is assigned in accordance with that subsection. (cessionnaire de la créance alimentaire)
“spouse”
« époux »
“spouse” has the meaning assigned by subsection 2(1) of the Act, and includes a former spouse. (époux)
“table”
« table »
“table” means a federal child support table set out in Schedule I. (table)
Income Tax Act
(2) Words and expressions that are used in sections 15 to 21 and that are not defined in this section have the meanings assigned to them under the Income Tax Act.
Most current information
(3) Where, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.
Application of Guidelines
(4) In addition to child support orders, these Guidelines apply, with such modifications as the circumstances require, to
(a) interim orders under subsections 15.1(2) and 19(9) of the Act;
(b) orders varying a child support order;
(c) orders referred to in subsection 19(7) of the Act; and
(d) recalculations under paragraph 25.1(1)(b) of the Act.
Recalculations
(5) For greater certainty, the provisions of these Guidelines that confer a discretionary power on a court do not apply to recalculations under paragraph 25.1(1)(b) of the Act by a provincial child support service.
AMOUNT OF CHILD SUPPORT
Presumptive rule
3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
Child the age of majority or over
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
Applicable table
(3) The applicable table is
(a) if the spouse against whom an order is sought resides in Canada,
(i) the table for the province in which that spouse ordinarily resides at the time the application for the child support order, or for a variation order in respect of a child support order, is made or the amount is to be recalculated under section 25.1 of the Act,
(ii) where the court is satisfied that the province in which that spouse ordinarily resides has changed since the time described in subparagraph (i), the table for the province in which the spouse ordinarily resides at the time of determining the amount of support, or
(iii) where the court is satisfied that, in the near future after determination of the amount of support, that spouse will ordinarily reside in a given province other than the province in which the spouse ordinarily resides at the time of that determination, the table for the given province; and
(b) if the spouse against whom an order is sought resides outside of Canada, or if the residence of that spouse is unknown, the table for the province where the other spouse ordinarily resides at the time the application for the child support order or for a variation order in respect of a child support order is made or the amount is to be recalculated under section 25.1 of the Act.
SOR/97-563, s. 1.
Incomes over $150,000
4. Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is
(a) the amount determined under section 3; or
(b) if the court considers that amount to be inappropriate,
(i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;
(ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, 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; and
(iii) the amount, if any, determined under section 7.
Spouse in place of a parent
5. Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.
Medical and dental insurance
6. In making a child support order, where medical or dental insurance coverage for the child is available to either spouse through his or her employer or otherwise at a reasonable rate, the court may order that coverage be acquired or continued.
Special or extraordinary expenses
7. (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
Definition of “extraordinary expenses”
(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
Subsidies, tax deductions, etc.
(3) In determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
SOR/2000-337, s. 1; SOR/2000-390, s. 1(F); SOR/2005-400, s. 1.
Split custody
8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.
Shared custody
9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
Undue hardship
10. (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
Circumstances that may cause undue hardship
(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising access to a child;
(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
Standards of living must be considered
(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.
Standards of living test
(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.
Reasonable time
(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.
Reasons
(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.
ELEMENTS OF A CHILD SUPPORT ORDER
Form of payments
11. The court may require in a child support order that the amount payable under the order be paid in periodic payments, in a lump sum or in a lump sum and periodic payments.
Security
12. The court may require in the child support order that the amount payable under the order be paid or secured, or paid and secured, in the manner specified in the order.
Information to be specified in order
13. A child support order must include the following information:
(a) the name and birth date of each child to whom the order relates;
(b) the income of any spouse whose income is used to determine the amount of the child support order;
(c) the amount determined under paragraph 3(1)(a) for the number of children to whom the order relates;
(d) the amount determined under paragraph 3(2)(b) for a child the age of majority or over;
(e) the particulars of any expense described in subsection 7(1), the child to whom the expense relates, and the amount of the expense or, where that amount cannot be determined, the proportion to be paid in relation to the expense; and
(f) the date on which the lump sum or first payment is payable and the day of the month or other time period on which all subsequent payments are to be made.
VARIATION OF CHILD SUPPORT ORDERS
Circumstances for variation
14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:
(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;
(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and
(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
SOR/97-563, s. 2; SOR/2000-337, s. 2.
INCOME
Determination of annual income
15. (1) Subject to subsection (2), a spouse’s annual income is determined by the court in accordance with sections 16 to 20.
Agreement
(2) Where both spouses agree in writing on the annual income of a spouse, the court may consider that amount to be the spouse’s income for the purposes of these Guidelines if the court thinks that the amount is reasonable having regard to the income information provided under section 21.
Calculation of annual income
16. Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Customs and Revenue Agency and is adjusted in accordance with Schedule III.
SOR/2000-337, s. 3.
Pattern of income
17. (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
Non-recurring losses
(2) Where a spouse has incurred a non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse’s annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections 6 and 7 of Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate.
SOR/2000-337, s. 4.
Shareholder, director or officer
18. (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include
(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or
(b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.
Adjustment to corporation’s pre-tax income
(2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.
Imputing income
19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse 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 or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
Reasonableness of expenses
(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.
SOR/2000-337, s. 5.
Non-resident
20. (1) Subject to subsection (2), where a spouse is a non-resident of Canada, the spouse’s annual income is determined as though the spouse were a resident of Canada.
Non-resident taxed at higher rates
(2) Where a spouse is a non-resident of Canada and resides in a country that has effective rates of income tax that are significantly higher than those applicable in the province in which the other spouse ordinarily resides, the spouse’s annual income is the amount that the court determines to be appropriate taking those rates into consideration.
SOR/2005-400, s. 2.
INCOME INFORMATION
Obligation of applicant
21. (1) A spouse who is applying for a child support order and whose income information is necessary to determine the amount of the order must include the following with the application:
(a) a copy of every personal income tax return filed by the spouse for each of the three most recent taxation years;
(b) a copy of every notice of assessment and reassessment issued to the spouse for each of the three most recent taxation years;
(c) where the spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the spouse’s employer setting out that information including the spouse’s rate of annual salary or remuneration;
(d) where the spouse is self-employed, for the three most recent taxation years
(i) the financial statements of the spouse’s business or professional practice, other than a partnership, and
(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the spouse does not deal at arm’s length;
(e) where the spouse is a partner in a partnership, confirmation of the spouse’s income and draw from, and capital in, the partnership for its three most recent taxation years;
(f) where the spouse controls a corporation, for its three most recent taxation years
(i) the financial statements of the corporation and its subsidiaries, and
(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;
(g) where the spouse is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements; and
(h) in addition to any income information that must be included under paragraphs (c) to (g), where the spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information.
Obligation of respondent
(2) A spouse who is served with an application for a child support order and whose income information is necessary to determine the amount of the order, must, within 30 days after the application is served if the spouse resides in Canada or the United States or within 60 days if the spouse resides elsewhere, or such other time limit as the court specifies, provide the court, as well as the other spouse or the order assignee, as the case may be, with the documents referred to in subsection (1).
Special expenses or undue hardship
(3) Where, in the course of proceedings in respect of an application for a child support order, a spouse requests an amount to cover expenses referred to in subsection 7(1) or pleads undue hardship, the spouse who would be receiving the amount of child support must, within 30 days after the amount is sought or undue hardship is pleaded if the spouse resides in Canada or the United States or within 60 days if the spouse resides elsewhere, or such other time limit as the court specifies, provide the court and the other spouse with the documents referred to in subsection (1).
Income over $150,000
(4) Where, in the course of proceedings in respect of an application for a child support order, it is established that the income of the spouse who would be paying the amount of child support is greater than $150,000, the other spouse must, within 30 days after the income is established to be greater than $150,000 if the other spouse resides in Canada or the United States or within 60 days if the other spouse resides elsewhere, or such other time limit as the court specifies, provide the court and the spouse with the documents referred to in subsection (1).
Making of rules not precluded
(5) Nothing in this section precludes the making of rules by a competent authority, within the meaning of section 25 of the Act, respecting the disclosure of income information that is considered necessary for the purposes of the determination of an amount of a child support order.
SOR/2000-337, s. 6.
Failure to comply
22. (1) Where a spouse fails to comply with section 21, the other spouse may apply
(a) to have the application for a child support order set down for a hearing, or move for judgment; or
(b) for an order requiring the spouse who failed to comply to provide the court, as well as the other spouse or order assignee, as the case may be, with the required documents.
Costs of the proceedings
(2) Where a court makes an order under paragraph (1)(a) or (b), the court may award costs in favour of the other spouse up to an amount that fully compensates the other spouse for all costs incurred in the proceedings.
Adverse inference
23. Where the court proceeds to a hearing on the basis of an application under paragraph 22(1)(a), the court may draw an adverse inference against the spouse who failed to comply and impute income to that spouse in such amount as it considers appropriate.
Failure to comply with court order
24. Where a spouse fails to comply with an order issued on the basis of an application under paragraph 22(1)(b), the court may
(a) strike out any of the spouse’s pleadings;
(b) make a contempt order against the spouse;
(c) proceed to a hearing, in the course of which it may draw an adverse inference against the spouse and impute income to that spouse in such amount as it considers appropriate; and
(d) award costs in favour of the other spouse up to an amount that fully compensates the other spouse for all costs incurred in the proceedings.
Continuing obligation to provide income information
25. (1) Every spouse against whom a child support order has been made must, on the written request of the other spouse or the order assignee, not more than once a year after the making of the order and as long as the child is a child within the meaning of these Guidelines, provide that other spouse or the order assignee with
(a) the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents;
(b) as applicable, any current information, in writing, about the status of any expenses included in the order pursuant to subsection 7(1); and
(c) as applicable, any current information, in writing, about the circumstances relied on by the court in a determination of undue hardship.
Below minimum income
(2) Where a court has determined that the spouse against whom a child support order is sought does not have to pay child support because his or her income level is below the minimum amount required for application of the tables, that spouse must, on the written request of the other spouse, not more than once a year after the determination and as long as the child is a child within the meaning of these Guidelines, provide the other spouse with the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents.
Obligation of receiving spouse
(3) Where the income information of the spouse in favour of whom a child support order is made is used to determine the amount of the order, the spouse must, not more than once a year after the making of the order and as long as the child is a child within the meaning of these Guidelines, on the written request of the other spouse, provide the other spouse with the documents and information referred to in subsection (1).
Information requests
(4) Where a spouse or an order assignee requests information from the other spouse under any of subsections (1) to (3) and the income information of the requesting spouse is used to determine the amount of the child support order, the requesting spouse or order assignee must include the documents and information referred to in subsection (1) with the request.
Time limit
(5) A spouse who receives a request made under any of subsections (1) to (3) must provide the required documents within 30 days after the request’s receipt if the spouse resides in Canada or the United States and within 60 days after the request’s receipt if the spouse resides elsewhere.
Deemed receipt
(6) A request made under any of subsections (1) to (3) is deemed to have been received 10 days after it is sent.
Failure to comply
(7) A court may, on application by either spouse or an order assignee, where the other spouse has failed to comply with any of subsections (1) to (3)
(a) consider the other spouse to be in contempt of court and award costs in favour of the applicant up to an amount that fully compensates the applicant for all costs incurred in the proceedings; or
(b) make an order requiring the other spouse to provide the required documents to the court, as well as to the spouse or order assignee, as the case may be.
Unenforceable provision
(8) A provision in a judgment, order or agreement purporting to limit a spouse’s obligation to provide documents under this section is unenforceable.
SOR/97-563, s. 3(E).
Provincial child support services
26. A spouse or an order assignee may appoint a provincial child support service to act on their behalf for the purposes of requesting and receiving income information under any of subsections 25(1) to (3), as well as for the purposes of an application under subsection 25(7).
COMING INTO FORCE
Coming into force
27. These Guidelines come into force on May 1, 1997.
SCHEDULE I
(Subsection 2(1))
FEDERAL CHILD SUPPORT TABLES
Notes:
1. The federal child support tables set out the amount of monthly child support payments for each province on the basis of the annual income of the spouse ordered to pay child support (the “support payer”) and the number of children for whom a table amount is payable. Refer to these Guidelines to determine whether special measures apply.
2. There is a threshold level of income below which no amount of child support is payable. Child support amounts are specified for incomes up to $150,000 per year. Refer to section 4 of these Guidelines to determine the amount of child support payments for support payers with annual incomes over $150,000.
3. Income is set out in the tables in intervals of $1,000. Monthly amounts are determined by adding the applicable basic amount and the amount calculated by multiplying the applicable percentage by the portion of the income that exceeds the lower amount within that interval of income.
Example:
Province: British Columbia
Number of children: 2
Annual income of support payer: $33,760
Basic amount: $515
Percentage: 1.39%
Lower amount of the income interval: $33,000
The amount of monthly child support is calculated as follows:
$515 + [1.39% × ($33,760-$33,000)]
$515 + [1.39/100 × $760]
$515 + [0.0139 × $760]
$515 + $10.56 = $525.56
4. There are separate tables for each province. The amounts vary from one province to another because of differences in provincial income tax rates. The tables are in the following order:
(a) Ontario;
(b) Quebec;
(c) Nova Scotia;
(d) New Brunswick;
(e) Manitoba;
(f) British Columbia;
(g) Prince Edward Island;
(h) Saskatchewan;
(i) Alberta;
(j) Newfoundland and Labrador;
(k) Yukon;
(l) Northwest Territories; and
(m) Nunavut.
5. The amounts in the tables are based on economic studies of average spending on children in families at different income levels in Canada. They are calculated on the basis that child support payments are no longer taxable in the hands of the receiving parent and no longer deductible by the paying parent. They are calculated using a mathematical formula and generated by a computer program.
6. The formula referred to in note 5 sets support amounts to reflect average expenditures on children by a spouse with a particular number of children and level of income. The calculation is based on the support payer’s income. The formula uses the basic personal amount for non-refundable tax credits to recognize personal expenses, and takes other federal and provincial income taxes and credits into account. Federal Child Tax benefits and Goods and Services Tax credits for children are excluded from the calculation. At lower income levels, the formula sets the amounts to take into account the combined impact of taxes and child support payments on the support payer’s limited disposable income. SCHEDULE II
(Subsection 10(4))
COMPARISON OF HOUSEHOLD STANDARDS OF LIVING TEST
Definitions
1. The definitions in this section apply in this Schedule.
“average tax rate” [Repealed, SOR/2000-337, s. 7]
“child”
« enfant »
“child” means a child of the marriage or a child who
(a) is under the age of majority; or
(b) is the age of majority or over but is unable, by reason of illness, disability or other cause to obtain the necessaries of life. (enfant)
“household”
« ménage »
“household” means a spouse and any of the following persons residing with the spouse
(a) any person who has a legal duty to support the spouse or whom the spouse has a legal duty to support;
(b) any person who shares living expenses with the spouse or from whom the spouse otherwise receives an economic benefit as a result of living with that person, if the court considers it reasonable for that person to be considered part of the household; and
(c) any child whom the spouse or the person described in paragraph (a) or (b) has a legal duty to support. (ménage)
“taxable income”
« revenu imposable »
“taxable income” means the annual taxable income determined using the calculations required to determine “Taxable Income” in the T1 General form issued by the Canada Customs and Revenue Agency. (revenu imposable)
Test
2. The comparison of household standards of living test is as follows:
STEP 1
Establish the annual income of each person in each household by applying the formula
A – B – C
where
A is the person’s income determined in accordance with sections 15 to 20 of these Guidelines,
B is the federal and provincial taxes payable on the person’s taxable income, and
C is the person’s source deductions for premiums paid under the Employment Insurance Act and contributions made to the Canada Pension Plan and the Quebec Pension Plan.
Where the information on which to base the income determination is not provided, the court may impute income in the amount it considers appropriate.
STEP 2
Adjust the annual income of each person in each household by
(a) deducting the following amounts, calculated on an annual basis:
(i) any amount relied on by the court as a factor that resulted in a determination of undue hardship, except any amount attributable to the support of a member of the household that is not incurred due to a disability or serious illness of that member,
(ii) the amount that would otherwise be payable by the person in respect of a child to whom the order relates, if the pleading of undue hardship was not made,
(A) under the applicable table, or
(B) as is considered by the court to be appropriate, where the court considers the table amount to be inappropriate,
(iii) any amount of support that is paid by the person under a judgment, order or written separation agreement, except
(A) an amount already deducted under subparagraph (i), and
(B) an amount paid by the person in respect of a child to whom the order referred to in subparagraph (ii) relates; and
(b) adding the following amounts, calculated on an annual basis:
(i) any amount that would otherwise be receivable by the person in respect of a child to whom the order relates, if the pleading of undue hardship was not made,
(A) under the applicable table, or
(B) as is considered by the court to be appropriate, where the court considers the table amount to be inappropriate,
(ii) any amount of child support that the person has received for any child under a judgment, order or written separation agreement.
STEP 3
Add the amounts of adjusted annual income for all the persons in each household to determine the total household income for each household.
STEP 4
Determine the applicable low-income measures amount for each household based on the following:
(LOW-INCOME MEASURES)
STEP 5
Divide the household income amount (Step 3) by the low-income measures amount (Step 4) to get a household income ratio for each household.
STEP 6
Compare the household income ratios. The household that has the higher ratio has the higher standard of living.
SOR/97-563, ss. 10, 11; SOR/2000-337, s. 7; SOR/2005-400, s. 6.
SCHEDULE III
(Section 16)
ADJUSTMENTS TO INCOME
Employment expenses
1. Where the spouse is an employee, the spouse’s applicable employment expenses described in the following provisions of the Income Tax Act are deducted:
(a) [Repealed, SOR/2000-337, s. 8]
(b) paragraph 8(1)(d) concerning expenses of teacher’s exchange fund contribution;
(c) paragraph 8(1)(e) concerning expenses of railway employees;
(d) paragraph 8(1)(f) concerning sales expenses;
(e) paragraph 8(1)(g) concerning transport employee’s expenses;
(f) paragraph 8(1)(h) concerning travel expenses;
(f.1) paragraph 8(1)(h.1) concerning motor vehicle travel expenses;
(g) paragraph 8(1)(i) concerning dues and other expenses of performing duties;
(h) paragraph 8(l)(j) concerning motor vehicle and aircraft costs;
(i) paragraph 8(1)(l.1) concerning Canada Pension Plan contributions and Employment Insurance Act premiums paid in respect of another employee who acts as an assistant or substitute for the spouse;
(j) paragraph 8(1)(n) concerning salary reimbursement;
(k) paragraph 8(1)(o) concerning forfeited amounts;
(l) paragraph 8(1)(p) concerning musical instrument costs; and
(m) paragraph 8(1)(q) concerning artists’ employment expenses.
Child support
2. Deduct any child support received that is included to determine total income in the T1 General form issued by the Canada Customs and Revenue Agency.
Spousal support
3. (1) To calculate income for the purpose of determining an amount under an applicable table, deduct the spousal support received from the other spouse.
Special or extraordinary expenses
(2) To calculate income for the purpose of determining an amount under section 7 of these Guidelines, deduct the spousal support paid to the other spouse.
Social assistance
4. Deduct any amount of social assistance income that is not attributable to the spouse.
Dividends from taxable Canadian corporations
5. Replace the taxable amount of dividends from taxable Canadian corporations received by the spouse by the actual amount of those dividends received by the spouse.
Capital gains and capital losses
6. Replace the taxable capital gains realized in a year by the spouse by the actual amount of capital gains realized by the spouse in excess of the spouse’s actual capital losses in that year.
Business investment losses
7. Deduct the actual amount of business investment losses suffered by the spouse during the year.
Carrying charges
8. Deduct the spouse’s carrying charges and interest expenses that are paid by the spouse and that would be deductible under the Income Tax Act.
Net self-employment income
9. Where the spouse’s net self-employment income is determined by deducting an amount for salaries, benefits, wages or management fees, or other payments, paid to or on behalf of persons with whom the spouse does not deal at arm’s length, include that amount, unless the spouse establishes that the payments were necessary to earn the self-employment income and were reasonable in the circumstances.
Additional amount
10. Where the spouse reports income from self-employment that, in accordance with sections 34.1 and 34.2 of the Income Tax Act, includes an additional amount earned in a prior period, deduct the amount earned in the prior period, net of reserves.
Capital cost allowance for property
11. Include the spouse’s deduction for an allowable capital cost allowance with respect to real property.
Partnership or sole proprietorship income
12. Where the spouse earns income through a partnership or sole proprietorship, deduct any amount included in income that is properly required by the partnership or sole proprietorship for purposes of capitalization.
Employee stock options with a Canadian-controlled private corporation
13. (1) Where the spouse has received, as an employee benefit, options to purchase shares of a Canadian-controlled private corporation, or a publicly traded corporation that is subject to the same tax treatment with reference to stock options as a Canadian-controlled private corporation, and has exercised those options during the year, add the difference between the value of the shares at the time the options are exercised and the amount paid by the spouse for the shares, and any amount paid by the spouse to acquire the options to purchase the shares, to the income for the year in which the options are exercised.
Disposal of shares
(2) If the spouse has disposed of the shares during a year, deduct from the income for that year the difference determined under subsection (1).
SOR/97-563, ss. 12 to 14; SOR/2000-337, ss. 8 to 11, 12(E); SOR/2001-292, s. 1.
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