Divorce: Child Support

In typical divorce cases, the most common disputes revolve around:

1. Custody dispute
2. Spousal support
3. Child support

This article aims to provide a basic understanding of how courts approach and routinely handle child support disputes. In family law, the court’s approach to child support after divorce is guided by 3 primary principles:

1. The foremost principle is always prioritizing the maximization of the child’s best interests (Best Interest of the Child, “BIC”).
2. In practical terms, child support is linked to the second principle outlined in s.15.2(6) of the Divorce Act: sharing the financial burden of childcare between the divorced spouses.
   • This means that if there are children involved, spousal and child support are essentially interconnected, with the Divorce Act s.15.3 explicitly prioritizing child support.
3. The Federal government has provided guidelines with specific numbers, for instance, the guidance for Ontario residents can be found here.

Regarding the types of child support orders from a legal perspective, there are primarily three categories:

1. Temporary Orders: s.15.1(3) of the Divorce Act empowers the court to issue temporary orders, known as Interim Support Orders (ISOs), while the final divorce decree is pending. These orders require the parent who does not live with the child to pay a reasonable amount to support the custodial parent’s living expenses. Essentially, ISOs are provisional measures intended to resolve the financial issues of the parent living with the child during the period between separation and the formalization of the divorce.
2. Permanent Orders (Permanent Support Order, abbreviated as PSO): Although termed “permanent,” these orders generally last until the child reaches adulthood, which is typically at 18 years of age. However, case law provides exceptions, and in many instances, support may continue to be necessary when a child pursues higher education, such as attending university.
3. Variations to Previous Orders: If there are significant changes in the financial or familial circumstances of either party, such as the custodial parent remarrying, the court may modify or rescind an existing child support order.

Supplementing these are case law examples that detail child support orders:

Senos v Karcz [2014]

This case is pivotal in defining “how much should these guidelines be relied upon?”:

• The closer a child’s condition and environment are to the ordinary situations on which the guidelines are based, the more reasonable and appropriate the guidelines’ information is.
• Conversely, the more unique the child’s circumstances, the less suitable the guidelines.

Chartier v Chartier [1999]

• Issue
  • Does the husband have any support obligations arising out of his relationship to his ex-wife’s daughter from another marriage? 
• Ratio
  • The test for a parent to stand is in loco parentis (meaning “in the place of a parent” or “instead of parent”)
• Background
  • Parties began a common law relationship and then married less than two years later, and had a child, W also had a daughter from a previous relationship. 
  • H played an active role in caring for both children and was a father figure to W’s daughter.
  • Parties separate and in a consent judgment, 
  • H acknowledged both children as children of the marriage and was granted access to them. W commenced divorce proceedings and requested declaration that H stood in the place of a parent to her daughter, which H contested. 
  • They had discussed formal adoption, but never happened. 
  • Trial Judge found H had repudiated his parental relationship and was not required to contribute any support for her; the spouse standing in the place of a parent, having voluntarily assumed that role, had the right to withdraw unilaterally from that role.
• Analysis/Discussion
  • Need to determine the nature of the relationship from an objective perspective, i.e. what would a reasonable person think the status of these people is to one another? Arguments that should be from the perspective of the child was rejected as impractical (it means the arguments should be from the adults’ perspective and the step-daughter’s view shouldn’t be 100% taken because that is impratical). The following factors should be considered in this assessment: 
    • Intention
      • Expressed formally / inferred from conduct. Stepparent cannot contract out of in loco parentis relationship from the onset.
    • Participation in the extended family
      • Does the child participate in the extended family in the same way as would a biological child?
    • Financial support
      • Does stepparent provide financially for the child? 
    • Discipline
      • Does the person discipline the child? 
    • Holding out
      • Does the person represent to the child/ and to the family and the world, either explicitly or implicitly, that he or she is responsible as a parent to the child?
    • Role of biological parent
      • What is the nature or existence of the child’s relationship with the non-custodial biological parent? If the biological parent has an active role this militates against finding of in loco parentis. A person in loco parentis can apply for custody.
• Held
  • The Court held for the mother. 
  • H stood in the place of a parent to stepdaughter; he represented to her and the world that he assumed full parental responsibility for her. He was the only father she had ever known, and the parties led her to believe he was her biological father. After the separation he continued his visits with “the girl” until his access was terminated with both girls.

Wright v Zaver [2002]

• Issue
  • Can lump sum payment be altered later if material circumstances demand it?
  • Can a mother get child support from two parties (father and stepfather)?
• Background
  • Application by M for child support from the father of her 15yo child. 
  • Parties separated shortly after the child’s birth and reached a settlement whereby the father agreed to a lump sum payment of $4,000 without any admission of paternity. 
  • 1 year later, the father brought an application for access/contact in which he offered to make child support payments of $100 per month and admitted paternity, but later F withdrew the application and did not have any further contact with the child. 
  • The mother remarried and the (new) H accepted the child as his own. 
  • When the mother and (new) H separated, (new) H paid child support in accordance with the Guidelines. The (new) H annual income was $60,000 and the mother was $25,000. 
  • The mother argued that the amount of child support should be reevaluated because the F income had doubled since the settlement.
• Held: 
  • Application allowed. F was ordered to pay $509 per month to the support of the child in accordance with the Guidelines.
  • The provisions of the settlement were inadequate. The lump sum paid to the mother for child support was barely enough to supply the necessaries of life for the child for several years. The settlement did not reflect the needs of the child or the ability of the parents to pay support. 
  • Therefore, the court was entitled to make a fresh determination as to the amount of child support. There had been a material change since the settlement. 
    • Court would not reduce the F obligations based on the fact that the child was also receiving support from his stepfather. The father had the means to financially support his child.

Easton v Coxhead [2018]

• Issue
  • Child support obligations for 22 yo child attending university to build upon an existing college diploma who had not explored other financial options.
• Held
  • The 22yo daughter was considered “the child of the marriage” so child support was found payable. 
    • While the daughter did not explore financial assistance she could receive elsewhere and hadn’t shared full details of costs with both parents, Court found she was enrolled in a full-time program, was pursuing a university degree that built upon the college diploma she already had, and her parents had the financial ability to support her. She was, however, expected to contribute to her expenses through her own summer employment. 
      • While the amount payable for a child 18 or over may be the amount set by the Child Support Guidelines, one could argue a different amount is appropriate. This turns on the condition, means, needs and other circumstances of the child as well as the ability of parents to contribute to the child’s support. 
      • It’s quite common for adult students attending post-secondary school to receive monthly support, but in this case, it’s calculated based on how much time she spent living with M. Support payable for the four summer months she lived at home & was prorated over 12 months of the year. 

Lewi v Lewi [2006]

• Issue
  • What child support obligations should there be for parents of children attending university who are financially self-sufficient?
• Background
  • Consent order between separated spouses  provided for, inter alia (meaning “among other things”), child support under the Federal Child Support Guidelines, including some s.7 expenses.
  • Order was silent on post-secondary education costs.
    • Both children of the marriage were currently in university. 
  • The mother moved to vary the order to provide increased contribution by the father for s.7 expenses, including that the father pay his proportionate share of all of the children’s post-secondary education expenses for undergraduate and graduate programs. 
  • The father defended the motion by submitting children had substantial funds of their own, which should be used to pay for their education before any parental contribution was ordered. The paternal grandfather had established a trust fund for each child, but not exclusively for their education, and each child had an RESP. 
  • The Ontario Superior Court ordered the children to contribute a portion of their summer employment funds (no capital) and that their parents pay their proportionate share of the balance of the education costs. Full child support continued if the child remained at home while attending university. If the child went away to university, child support was payable only for the summer months when the child returned home.
• Held:
  • CoA said a child attending university away from home was required to pay 50% of his education costs before the parents were required to contribute proportionally for the balance. The child living at home while attending university was required to pay the entire cost (100%) of his education out of his assets.

Francis v Baker [1999]

• Issue
  • What does “inappropriate” mean in regard to s.4 Federal Child Support Guidelines?
• Ratio
  • Inappropriate means “unsuitable”, not “insufficient”.
• Background
  • Parties married when F was a lawyer and the mother was a teacher. 
  • Initially intended that the mother would stay home for one year following the birth of the second child and then return to teaching on a part-time basis. 
  • 5 days after the second child was born, parties separated. 
  • At the time of trial, the mother’s earning was $63,000/year, and the father’s was $945,538, with net worth valued at $78m. the father had been paying $30,000/year in child support. 
  • In 1998, the mother applied for increased child support. 
  • The husband failed to file a timely financial statement and the trial judge found it inappropriate for father to pay the table amount applicable to his income level, ordering him to pay $10,034/month plus discretionary expenses. 
  • The husband appealed.
• Held
  • Appeal dismissed. 
  • “Inappropriate” means unsuitable regards to the means, needs and circumstances of the children and the financial capability of the spouse, and thus the amount can be either too low or too high. Both fairness and flexibility are stressed as important considerations under s.4. No strong presumption in favour of the table amount so the party seeking a deviation from table amount holds the onus of demonstrating the amount is inappropriate. 
  • Paying parents seeking variation must demonstrate that budgeted child expenses are so high as to “exceed the generous ambit within which reasonable disagreement is possible”. Bastarache states there must be “clear and convincing evidence” for deviation. Only after examining all the circumstances of the case, including the facts expressly listed in s.4(b)(ii) should courts find table amounts to be inappropriate and craft more suitable child support awards. While children can expect a “fair additional amount” beyond the first $150,000 table amount, there should be no redistribution of wealth to provide spousal support, though he recognizes the inevitability that some child support will benefit the custodial parent
    • In this case, the trial judge correctly considered all the factors and thus correctly exercised their discretion, leaving no basis for an appeal. 
    • There is a presumption in favour of the table amount; the onus is on the party seeking to deviate to show clear, convincing evidence why the table amount is inappropriate.