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 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 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 The Federal Child Support Guidelines: Step-by-Step.

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,
• the payer earns more than $150,000; or
• one parent has acted in place of a parent to the other parent’s child.

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?

Agreement
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.

Consent order
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.

Court order
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.

For more information, please see Changing an existing child support order or agreement.

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 Revenue Agency (CRA). 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 CRA, 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 CRA, 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 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 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

17. Can you explain some of these terms?

Consult the Glossary