FREQUENTLY
ASKED QUESTIONS ABOUT
THE CHILD SUPPORT GUIDELINES
The answers set out below are intended only to provide general information. Every person's situation is unique and most often there are more matters to consider than what is set out in the individual questions. While the changes to the Divorce Act and the Income Tax Act referred to in the questions and answers following will affect all Canadians, not all of the provinces and territories have announced if they will be adopting the same set of child support guidelines for their own legislation, or if they will be enacting any set of guidelines at all. As a result, in every case, wherever you live in Canada, you should consult an experienced family law lawyer fully informed about your circumstances and not act solely on the information set out here.
If you have a particular question not dealt with below you can send us an e-mail enquiry and we'll be sure to get back to you shortly.
What are the Child Support Guidelines?
In the last federal Budget, on March 6th, 1996, the Government of Canada introduced Child Support Guidelines as part of a change in the taxation of child support payments. The Guidelines have now been passed and will be coming into effect on May 1st, 1997. They will require that judges make an order for child support based upon the established guidelines in almost every case. The judge will look at a chart showing various income categories and determine what must be paid depending upon the number of children being supported and the income of the parent paying child support. There is a limited category of "add ons" for which the judge can provide by increasing the amount to be paid and a restricted set of circumstances which allow a judge to vary up or down from the amounts set out in the Guideline tables. There are separate rules for cases of split or shared custody as well as how to calculate the payor's income if it isn't clear. All of this is designed to bring certainty and predictability to what must be paid and will be received for child support. But it is already clear that there are a great number of questions still to be answered and many areas of concern to be dealt with.
Where can I see them for myself?
The Family Law Centre has put the new Child Support Guidelines up for easy viewing and you can download them from the Department of Justice's Internet site.
When do the Guidelines take effect?
The Guidelines and the other changes to the Divorce Act are scheduled to take effect on May 1st, 1997. The changes to the Income Tax Act, upon which the concept of the Guidelines are based, have not yet been passed, and may not be passed until after the federal election if one is called for this June. However, it is beyond imagining that the necessary Income Tax legislation will not be passed before the end of 1997.
Will payments under the Child Support Guidelines be taxable?
No. From the moment the new legislation comes into force any order made by the court, or agreement reached between the parties, for child support will be on the basis that it is not taxable in the hands of the person receiving it nor deductible for tax purposes from the income of the person paying it. This is a major change from the current system. (As mentioned in the answer to the previous question, however, the legislation amending the Income Tax Act has not yet been finalized, although this is expected to be done before the end of 1997.)
What happens when the legislation takes effect?
From the time the new Guidelines take effect onwards any award made by the court for child support must conform with the Guidelines. People will still be able to make agreements for child support in different amounts than set out in the tables prescribed by the Guidelines, but if they can't agree and either one goes to court, the figure in the tables and the rules of the Guidelines will apply.
What happens to orders and agreements already in place or made before the legislation takes effect?
Nothing, unless the order or agreement specifically provides that the new tax rules will apply from a particular date after the Guidelines take effect or the parties choose to voluntarily opt into the new taxation system.
Keep in mind that if the existing agreement comes to the court for a variation after April 30th, 997, the new legislation takes effect and the court will have to apply the new rules and the Child Support Guidelines. As soon as the court deals with the question of child support from May 1st, 1997 onwards, whether in a new proceeding or one seeking a variation of an existing order or agreement, it must make orders in compliance with Guidelines and the new legislation.
The Guidelines are federal legislation. Will they apply in my province?
If you are proceeding under the Divorce Act, the answer is absolutely "Yes". This will apply to any fresh application for child support in a divorce proceeding or any existing application which has not yet ben dealt with by the court in a proceeding which has already been commenced. It also applies for any applications to vary child support under the Divorce Act, even though the original order was made prior to may 1st, 1997.
But this is an important question for those who aren't under the Divorce Act. This would include non married parents of children who cannot agree to the amount of child support. In those cases the legislation affecting the amount os child support is provincial. Quebec has announced that it will not be adopting the Guidelines for its own provincial child support legislation but most of the other provincial and territorial governments are expected to enact matching legislation adopting them for their own child support legislation. Just which Provinces will be doing so is not clear yet. The Ontario government is one of the those expected to be enacting matching legislation over the next few months, but has not done so yet. Without matching arrangements there could be different amounts awarded for child support depending upon whether the child support was sought under the Divorce Act or provincial legislation. The general thinking, however, is that judges who will be obliged to use the Guidelines if the proceedings are under the Divorce Act will likely find some way to use the same figures, adjusted for taxes, if the child support is being sought under provincial legislation.
Can the parties voluntarily bring child support under the new rules?
Yes. Revenue Canada will have a form for both parties to sign stating that the new tax rules will apply to their agreement or court order starting any date after the Guidelines take effect. This will allow people to opt into the new tax scheme. But once you have opted into the new plan you can't opt back out. Remember also that if you are entering into your own agreement after the Guidelines are implemented you aren't restricted to the figures in the tables or the rules in the Guidelines apart from the fact that the payments will not be deductible for the payor or taxable for the recipient for Income Tax purposes.
Should I do anything if I already have an agreement or order for child support?
There's not much to be done now. If both the payor and the recipient want the new tax rules to apply to them, they can begin renegotiating their current arrangement to work out what they want to happen after April 31st, 1997. Because they can shift child support into a tax free payment and keep spousal support under the current system there may be advantages to each of them to restructure the payment scheme. This is now an option only available for a few weeks. (However, because the actual Income Tax amendments have not yet been finalized, you should keep in touch with an experienced family law lawyer to see if legislation as eventually passed will allow for a longer "grace" period within which to voluntarily choose to be under the deductible/includable system.)
There are cases where the current tax system can be much more beneficial to all of the parties and make more cash available for the children at less actual (after-tax) cost to the payor than under the Guidelines. Where this is the case, parties will be able to re-draw their existing arrangements now in order to keep the current deductible/includable tax system. This option disappears as soon as the legislation takes effect.
Many family law lawyers have computer software to determine the tax consequences of various payments and you should check with one of them, or an accountant, before making any changes or to see if there are changes you should make.
Should I wait until May 1st, 1997 before pressing for child support?
Not if you need it now. Besides, most judges are applying the Guidelines as we come closer and closer to May 1st, 1997.
What are the payment Schedules? How can I know what to expect to pay or receive?
By going to the March, 1996, Tables you can view an earlier version of the Tables for each of the Provinces and Territories. (NOTE: You have to go to the very end of this document to get to the various Tables, so keep scrolling until you get to the Province or Territory you are looking for.) Viewing the earlier Tables will give you a pretty close idea but to be accurate, the actual figures (as they are as at April 19th, 1997) need to be downloaded by going to the found at the new Provincial Payment Tables found at the Department of Justice's Internet site. Since these were posted the Tables have been changed again and there may still be a change in the last two weeks before the legislation takes effect. Unfortunately, there isn't any place on the Internet where you can easily view the most recent version of the Tables, although these should be available from government bookstores. The changes break down the amount of payments into $100 increments and some of the amounts have been changed a bit. But, as said above, for practical purposes you can get a good idea of the approximate amount of the payment by looking at the the March, 1996, Tables
While the payments don't vary too much from Province to Province, the different Tables are designed to take the different Provincial taxes into consideration.
Will there be a cost of living adjustment to the Guidelines?
No, unless a province creates a system to change the figures in the tables on an annual basis.
Since the payment depends on the amount of income, the payment will be able to be varied with the change in income. So long as an income has a cost of living adjustment feature it will rise accordingly and the recipient will be able to have the payment adjusted. Because this should become a pretty routine situation, it is expected that the parties will cooperate in adjusting the payment rather than forcing the recipient to ask for an increase which will be automatically granted.
The Guidelines have provisions for annual disclosure of income information by the payor so the recipient can see if an increase should be sought.
What about special expenses for the child?
There are 4 categories of special child-related expenses which the court can add to the table amounts if the judge finds that they are "reasonable and necessary" in light of the needs of the children and the means of the parents. They are:
(a) net child care expenses for a child who is not in full-time attendance at school or for whom extraordinary arrangements are required. The extra amount will likely take into consideration any tax deduction or subsidy the custodial parent receives for child care expenses;(b) medical and health related expenses over $200 per year per child that are not covered by provincial or territorial health insurance plans. This could include, for example, orthodontic and psychological counselling expenses;
(c) educational expenses for primary, secondary or post-secondary education or for an educational programmed that meets a child's particular needs. This might include tutors and special schools for the disabled; and
(d) extraordinary expenses for extracurricular activities that allow a child to pursue a special interest or talent, or attend a specialized programmed. This might include figure skating, piano lessons or hockey or soccer leagues.
What if the Guidelines are unfair or cause an "undue hardship"?
Forget "unfair". But a judge will be able to award an amount that is more or less than the table amount, plus the allowable special expenses, if the total amount causes an "undue hardship" to either parent or the child. In these cases the judge must issue written reasons.
Keep in mind that a situation may well be "unfair" but not represent an "undue hardship". An "undue hardship" will likely be found where the person claiming it can show that he or she has a standard of living which is lower than that of the other parent. As well, "undue hardship" might also be found where the paying parent has unusually high debts reasonably incurred to support the family or earn a living, has significant travel or accommodation expenses with respect to visiting with the children or has obligations to support other children or a spouse.
Remember that the guidelines are not yet law and that it will take a while before judges throughout the country develop a common understanding of how liberal and flexible or how rigid they should be in interpreting these principles. What might be an "undue" hardship to one judge may be a "reasonable" hardship to another. As well, the requirement for already overburdened judges to issue written reasons may have us see judges discouraging the bringing of "hardship" motions.
How will this work if there is split or shared custody?
For starters, different rules apply to these situations and you need to be sure which of the two apply to you.
"Split" custody is the situation where there is more than one child and each spouse has custody of one or more of them. That is, the custody of the children is spread out, or split, between the two parents.
"Shared" custody is "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". This is a new term for family law lawyers and it is not yet clear how this will be interpreted. For example, there is considerable uncertainty over how the courts will be figuring out what "40 per cent of the time over the course of a year" means. Does this include time when the children are in school or away at summer camp? Is there a difference if the camp is a day camp or an overnight camp? If the camp is paid for jointly, will the time there be counted equally?
For practical purposes where there is split custody the courts will figure out how much each parent would have had to pay for child support if the child was in the custody of the other and then subtract the smaller payment from the larger one to figure out the difference. The parent who would have had to make the larger payment will then pay the "difference" to the other as the proper amount of child support. Once this is calculated, the court will then look at the "add ons" to see who should be paying whom for those.
So the first step is to figure out the difference in child support each parent would pay if the child was in the custody of the other parent and then figure out who should pay how much to whom for the special or extraordinary expenses ("add ons").
Where there is shared custody the situation is different and more complicated. The Guidelines provide as follows:
"s. 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 amount 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 of the marriage for whom support is sought."
As a result, where there is shared custody the court must first figure out what each parent would have had to pay for child support if the child was in the care of the other, then figure out the "increased" costs because of the "shared custody arrangements" and then take into consideration the "condition, means, needs and other circumstances of each spouse and of any child for whom the support is being sought." It is this last step which will create the greatest amount of uncertainty because it seems to put the courts back into the position before the Guidelines of looking into the "conditions, means needs and other circumstances of each spouse" as well as for the child. The wording here makes it pretty clear that in the case of shared parenting the court will get to look at a lot more than just the gross income of the non custodial parent and will have to be looking at the income and circumstances of the other spouse. Surely the "conditions, means, needs and other circumstances" include looking into the income and wealth of anyone with whom either party is living.
It is widely felt that the section dealing with shared custody will be one of the earliest sections to be looked at for revision and clarification. But for the meantime, this is the section about lawyers can give clients the least amount of advice until after the courts have pronounced on how it is to be dealt with.It appears that for shared custody the kind of rules and certainty the Guidelines apply to other cases of child support aren't going to apply. In fact, it seems as though, on the regulations as now drafted, shared custody cases will be much like before the introduction of the Guidelines and the courts will be looking at the "means, needs and other circumstances" of the parties, something which it will not be able to do in other cases for child support under the regulations.
In addition to these bigger questions, we don't yet know what costs of shared custody will be regarded as "increased" as opposed to normal. If a non custodial parent who has the children on alternate or even regular weekends needs to have an extra bedroom for them, will this be regarded as an "increased" cost if that parent has the children for 40 per cent of the time? If the extra room wold be necessary for 35 per cent of the time, perhaps is isn't an "increased" cost. Only time will tell.
This is clearly a case where the simplification of matters has left more confusion than before. This may be addressed by the government before it finalizes the regulations, but whether or not there are changes, anyone in this situation is strongly advised to keep in touch with a family law lawyer to see just what the final regulations will say and how they are likely to be applied.
Can I get information about the Child Support Guidelines on the Web?
Yes. There are lots of sites available for information about the new Child Support legislation, including information about the changes to the Income Tax Act and the Divorce Act as well as the Tables setting out what is to be paid for support depending upon the income of the payor and the number of children.
1. Through the Family Law Centre
Here at the FLC you can access much information about the new Child Support Guidelines by checking out the locations set out below.
1.1 The actual text of the final version of the Guidelines.
So far as we know, this is the only place on the Internet with the text of the guidelines posted. Scroll down to the Federal Government's Internet Sites to download your own copy. Unfortunately, the Tables are not reproduced here but are available through the Government's site.1.2 Frequently Asked Questions About the Child Support Guidelines
That's where you are now. You've already found this group of questions and answers which tries to cover the most common issues. If there is anything you want to know that isn't discussed here, please check out the other sites and locations shown below. If that hasn't helped, send us an e-mail message by going to the bottom of this frame and we'll try our best to sort things out for you.
1.3 Cases & Comments
There are three Comments about the new Child Support Guidelines. Each are strongly recommended.There is an Memorandum titled "Child Support Guidelines: Memorandum To Ontario Lawyers" in Cases and Comments written by Philip M. Epstein and circulated to Ontario Lawyers by LPIC, the Lawyers Professional Indemnity Company, which insures all Ontario practicing lawyers. The article is intended to help Ontario lawyers understand the new proposals and guide them in the months leading up to the time the legislation comes into effect. While this was written for lawyers, it is useful for anyone to read to see what kind of information is being distributed to the Ontario legal community at large. The information is easy to read and to understand and should give anyone with an interest in the Guidelines useful material.
A second article by Philip M. Epstein is "Child Support Guidelines Legislation: An Overview", which is a detailed review of the legislation about to come into effect, now that the final version is known. This may be the most detailed discussion of the Child Support Guidelines available on the internet. As with the earlier article, this is written for lawyers but is useful for anyone with a question about what the new legislation might mean. Highly recommended. As well, there is an article titled "Income Tax Treatment Under the New Child Support Guidelines" by Bruce Roher, President of Fuller Jenks Roher Inc., Business Valuators and Litigation Accountants, which is designed to explain the income tax aspects of this for the non-lawyer. This is one of a series of articles by Mr. Roher dealing with various aspects of the Income Tax Act in family Law situations.
2 Through the Federal Government's Internet Sites
The Federal Government has put a number of documents on the Internet relating to the new Child Support Guidelines. We set out below an listing of several of them. Apart from the first one listed below, which has the recently passed final version posted in March, 1997, the others where posted before certain parts of the Guidelines were amended. Be sure to check any of the comments against the final version. (You can read the final version directly on the Internet by viewing the version posted here at the FLC.)
(If you know of any others, please send us an e-mail message so we can add them. Thanks, Joel Miller)2.1 The March, 1997, Press Release with the Final Guidelines and Tables available for downloading.
This press release give you the ability to download the final version of the Guidelines and the Tables for yourself. This is the way the Guidelines look after various amendments following its initial release and after the amendments which came about during the Senate's consideration of them. 2.2 The Child Support Package SummaryHere is an easy to read Summary of how the government describes what is trying to do. This is a good a place to start as any. You can also get the package in ANSI and Acrobat Adobe formats.
2.3 The Provincial Payment Tables
By going to the Tables you can get to a listing of the Tables for each of the Provinces and Territories. (NOTE: You have to go to the very end of this document to get to the various Tables, so keep scrolling until you get to the Province or Territory you are looking for.) While the payments don't vary too much, the different Tables are designed to take the different Provincial taxes into consideration.
2.4 Government Press Releases
Here is the place to go to get what the Government is saying in it's Press Releases dated March 6th, 1996 (the date of the Budget), May 30th and June 28th. These give an idea of the stated general intentions of the proposed legislation but no real details. This link also has links to the Backgrounder and Fact Sheets listed next, under Background Information, as well as a WordPerfect 5.1 version of the actual amending legislation reflected in Bill C.41 (1996). There have already been some revisions to this document and may be more before the final version is brought into law, so be careful about relying on it. As with so many other things, check with an experienced family law lawyer before you assume that what was originally introduced as the legislation is actually what will be the final version.
2.5 Background Information
You can get a Backgrounder and Fact Sheets from these sites. The information here is not fully up to date but shows some of the material the government was working with in framing the legislation it came up with.The Fact Sheets cover the following topics:
1. The new Federal Child Support Guidelines
2. How do the Federal Child Support Guidelines work?
3. New rules for the taxation of child support
4. Did You Know The Working Income Supplement Will Increase?
5. New Measures to Strengthen the Enforcement of Child Support
6. How do the new tax rules and Guidelines for child support affect existing orders?
2.6 Child Support: Public Discussion Paper
This is a discussion paper published as a WordPerfect 5.1 document for you to print out and read at your leisure.
2.7 Report of the Federal/Provincial/Territorial Family Law Committee
This is the 1992 report which started the revision process. It sets out, amongst other things, the financial implications of child support guidelines.
3. In Paper
You can also order a helpful booklet dealing with this subject from the government at:
Finance Canada Distribution Centre
300 Laurier Avenue, West
Ottawa, Ontario K1A 0G5
********1.2 Cases & Comments
There is an Memorandum titled "Child Support Guidelines: Memorandum To Ontario Lawyers" in Cases and Comments written by Philip M. Epstein and circulated to Ontario Lawyers by LPIC, the Lawyers Professional Indemnity Company, which insures all Ontario practicing lawyers. The article is intended to help Ontario lawyers understand the new proposals and guide them in the months leading up to the time the legislation comes into effect. While this was written for lawyers, it is useful for anyone to read to see what kind of information is being distributed to the Ontario legal community at large. The information is easy to read and to understand and should give anyone with an interest in the Guidelines useful material.
1.3 The Ontario Table Amounts
In the FLC Resource Directories there is a listing of the Table showing the amount of support to be paid by a payor living in Ontario. You can see this Schedule of Child Support Payments For Ontario under the Guidelines for Ontario in the FLC Resources Directories. At the time this was prepared for the FLC the Federal Table listed the payments at each $2,000 of income. That is, the payor's income had to go up by $2,000 before the payment increased to the next level. Since then, the government has proposed that the payments be raised at each $1,000 increase in th payor's income. As a result, the current payment proposal is that the amount of support will increase at $1,000 increments. To figure out the amount of support, just take a middle figure if you need to find the amount to the closest $1,000. This Table will be corrected shortly.
2. Through the Federal Government's Internet Sites
The Federal Government has put a number of documents on the Internet relating to the new Child Support Guidelines. We set out below an listing of several of them. (If you know of any others, please send us an e-mail message so we can add them. Thanks, Joel Miller)
2.1 The Child Support Package Summary
Here is an easy way to read Summary of how the government describes what is trying to do. This is as good a place to start as any. You can also get the package in ANSI and Acrobat Adobe formats. The Guidelines have been amended, particularly with respect to the provisions of shared parenting and the amounts of the Tables, since this posting by the government, but you can get some general information here.
2.2 The Provincial Payment Tables
By going to the Tables you can view an earlier version of the Tables for each of the Provinces and Territories. (NOTE: You have to go to the very end of this document to get to the various Tables, so keep scrolling until you get to the Province or Territory you are looking for.) Since then the Tables have been changed and there may still be a change in the last two weeks before the legislation takes effect. The changes break down the amount of payments in $100 increments and some of the amounts have been changed a bit. Viewing the earlier Tables will give you a pretty close idea but to be accurate the actual figures (as they stand at April 19th) need to be downloaded by going to the new Payment Table found at the Department of Justice's Internet site.While the payments don't vary too much from Province to Province, the different Tables are designed to take the different Provincial taxes into consideration.
2.3 Government Press Releases
Here is the place to go to get what the Government is saying in it's Press Releases dated March 6th, 1996 (the date of the Budget), May 30th and June 28th. These give an idea of the stated general intentions of the proposed legislation but no real details. This link also has links to the Backgrounder and Fact Sheets listed next, under Background Information, as well as a WordPerfect 5.1 version of the actual amending legislation reflected in Bill C.41 (1996). There have already been some revisions to this document and may be more before the final version is brought into law, so be careful about relying on it. As with so many other things, check with an experienced family law lawyer before you assume that what was originally introduced as the legislation is actually what will be the final version.
2.4 Background Information
You can get a Backgrounder and Fact Sheets from these sites. The information here is not fully up to date but shows some of the material the government was working with in framing the legislation it came up with.The Fact Sheets cover the following topics:
1. The new Federal Child Support Guidelines
2. How do the Federal Child Support Guidelines work?
3. New rules for the taxation of child support
4. Did You Know The Working Income Supplement Will Increase?
5. New Measures to Strengthen the Enforcement of Child Support
6. How do the new tax rules and Guidelines for child support affect existing orders?
2.5 Child Support: Public Discussion Paper
This is a discussion paper published as a WordPerfect 5.1 document for you to print out and read at your leisure.
2.6 Report of the Federal/Provincial/Territorial Family Law Committee
This is the 1992 report which started the revision process. It sets out, amongst other things, the financial implications of child support guidelines.
In Paper
You can also order a helpful booklet dealing with this subject from the government at:
Finance Canada Distribution Centre
300 Laurier Avenue, West
Ottawa, Ontario K1A 0G5
Many judges are looking at the Guidelines to see what the recipient would be entitled to once the Guidelines take effect and then doing a calculation to make an award so that the amount left in the recipient's hands after taxes is the same as would be the case if the Guidelines were already in place.
Click here to submit any questions you have concerning the Child Support Guidelines. Thanks, Joel Miller.
