Child Support

The Divorce Act defines a “child of the marriage” as a child of both spouses, a child of one of the spouses towards whom the other spouse acts as a parent or a child towards whom both spouses act as a parent. Biological children, adopted children and children looked after by the spouses may all be considered children of the marriage.

The custody and support provisions of the law apply to a child of the marriage who is under 18 years of age. The support provisions apply to a child who is over 18 and remains dependent on his or her parents because of illness, disability or other reasons. A child enrolled in a recognized education program and unable to support themselves may still be classed as a dependent.

Under the Divorce Act, a party can apply for financial support of a spouse or child, or custody or access to a child of the marriage.

A person who relies on someone else for financial support. In the context of divorce law, this may include a spouse or a child.

The federal tables which stipulate an amount of monthly child support due a parent for child support. While the calculations are done on the payor’s before-tax income, these payments are made from the payor’s after-tax income and are not taxable in the payee’s hands

You may access the federal government’s Child Support Online Lookup by using this link and following the directions:

Department of Justice – Child Support Online

This Act defines and establishes the parentage of a child, guardianship of a child for people who are not married. Under this Act, either the Provincial Court or the Court of Queen’s Bench can provide parenting and contact orders, or orders dealing with enforcement of time with a child and both child and partner support orders.

The court looks at a number of factors when determining whether retroactive child support should be awarded as follows:

(a) The child’s age;
(b) Delay in making the claim for retroactive support;
(c) Whether there was blameworthy conduct on the part of either the recipient or payor;
(d) Hardship to the child as a result of the non-payment;
(e) Hardship to the payor if a payment is made;
(f) Whether the recipient parent provided “effective notice” that they needed support;

Unreasonable delay by the recipient in seeking an increase will militate against a retroactive award, while blameworthy conduct by the payor will have the opposite effect.

When one party has the primary parenting of the children or parents the children more than 40% of the time, the other parent will pay s. 3 child support to the primary parent. In most cases, in order to determine s. 3 child support, a party uses his or her Line 150 Income from their Notice of Assessment and using the Federal Child Support Guidelines, determines the monthly amount owing to the primary parent. Child support is not paid to the child, but to the parent.

If a party earns more or less the next year, that amount must be adjusted for and paid to the primary parent the following year.

Child support is paid on the after-tax income of the payor and is not taxable income in the hands of the payee. The Courts rarely, if ever, determine an amount for child support other than that set out in the Federal Child Support Guidelines.

Section 7 expenses are paid or adjusted between the parties in addition to Section 3 child support. The following items are accepted s. 7 expenses:

(a) Child care expenses incurred to allow one parent to earn an income;
(b) Health/medical expenses – differences between single and family rate;
(c) Dental expenses – less insurance;
(d) Extracurricular activities, depending upon one’s income;
(e) Post-secondary expenses;

Each party pays their pro rata share of a section 7 expenses (after tax) based upon their income (ie. H: $70,000; W: $30,000; the split would be 70/30).

If the circumstances which justified a particular support, custody or access order change, a person affected by the Order can ask a Justice to alter the Order to make it fit the new circumstances.

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