Child Support Guidelines

From Clicklaw Wikibooks

Often simply referred to as the GuidelinesShort for the Child Support Guidelines, a regulation to the federal ''Divorce Act'', adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay based on the person's income and the number of children involved., the Child Support Guidelines, SOR/97-175, is a federal regulation, adopted by all of the provinces except Quebec, that describes the rules that the courts must apply when making an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." for child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses..

The most important feature of the Guidelines is the child support tables that fix the amount of support payments according to the annual income of the person paying support and the number of children the support is to be paid for.

The Guidelines cover every aspect of child support, including the calculation of income, how children's special expenses are paid for, the amount of support payable when the parents have the children for an almost equal amount of time, and the amount payable when one or more of the children live full-time with each parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent.".

This section talks about the basic principles of the Guidelines, the sharing of special and extraordinary expenses, the calculation of income, imputing income, and the circumstances in which the income of a parent's or guardianA person charged with the legal care of someone under a legal disability. A term under the ''Family Law Act'' referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time."'s new partner may be taken into account. It also provides an example of the contents of a typical child support order.

Basic principles

It used to be the case that the partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." claiming support, the recipient, had to jump through all sorts of hoops to show the amount of support the child needed and prove that the person being asked to pay support, the payor, had the means to pay that amount. These days, the amount of a child support order or an agreement for child support is based on the amounts set out in the tables attached to the Child Support GuidelinesA regulation to the federal ''Divorce Act'', adopted by every province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved.. The Guidelines have generally reduced the amount of time and money that parents spend fighting about child support, whether they're in court arguing about an order, or are negotiating the amount of support for a separation agreementA contract intended to resolve all or some of the issues outstanding following the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements.".

The Guidelines tables were most recently adjusted on 31 December 2011. The amount of child support required of lower earning parents was reduced and the amount of support for higher earning parents was increased, although none of the changes were particularly dramatic. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts.

The Guidelines' key presumption is set out in s. 3(1):

Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majorityThe age at which a child becomes a legal adult with the full capacity to act on their own, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See "disability" and "infant." 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 spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." against whom the order is sought; and
(b) the amount, if any, determined under s. 7.

This is, however, only a presumption, and can be challenged or rebutted, as is discussed in this chapter's next section, Exceptions to the Child Support Guidelines. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross annual income at the time the order is made.

Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order so that the amount of child support reflects the payor's current income. The payor would typically make the application if his or her income has fallen, while the recipient would make the application when the payor's income has increased. To avoid a situation where parents are continually making trips back to court to seek an adjustment of child support, it's a good idea to include a term that requires both parties to regularly exchange income information in an agreement or order for child support, so that child support can be adjusted from time to time without having to go to court.

Another of the Guidelines' important presumptions is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." is not based on the Guidelines amount for the total number of five children.

Finally, the amount of support payable is based only on the payor's income. In most situations the recipient's income is not a factor, nor is the income of the payor's new spouse or partner.

Special and/or extraordinary expenses

The basic amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."'s share of the rent, the hydro and gas bills, shoes, groceries, diapers, clothes, toothpaste, school field trip fees and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, a payor may also be required to cover a portion of these other expenses, so long as they qualify as special and/or extraordinary expenses under the Guidelines.

Special and/or extraordinary expenses are defined in s. 7(1) of the Guidelines:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disabilityIn law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority." 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.

Section 7(1.1) clarifies (1)(d) and (1)(f), and says that for these subsections "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 amountThe amount of child support payable under the Child Support Guidelines tables. See "Child Support Guidelines." 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.

Special expenses are shared between the payor and recipient. These provisions of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, both parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.

If an expense if found to qualify as a special and/or extraordinary expense under the s. 7(1) and (1.1) definitions, the court may make an order that both parties pay additional amounts, on top of the usual Guidelines basic amount of support, to cover all or a portion of the cost of the expense.

Qualifying expenses as "special and/or extraordinary"

Just because an expense appears to fall into one of the categories listed in s. 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first.

According to s. 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:

  1. 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 separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of."," and
  2. the necessity of the expense in relation to the child's best interests,

The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by s. 7(1.1). Here's a helpful summary from a 2010 case from our Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.", Piper v. Piper, 2010 BCSC 1718:

"Under s. 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in s. 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in s. 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."

Reasonableness

When the court is asked to consider a particular expense, it should first decide whether the expense is reasonable according to the parties' means. For lower income parents not many things are going to be considered reasonable:

  • Orthodontics, providing they are medically necessary.
  • Daycare, providing the daycare is required to enable a parent to work outside the home.

For parents with more money, more expenses will qualify as special expenses:

  • Cosmetic orthodontic work.
  • Dance, music and art classes, and summer day camps.
  • Less expensive team sports, like soccer, baseball and basketball.
  • Basic high-school graduation costs, such as tickets and gown or tuxedo rentals.
  • Basic post-secondary education costs, such as tuition fees for a local college or university, student fees and textbook costs.

For parents with lots of money, almost every big-ticket expense is probably going to be considered reasonable:

  • Multiple week summer camps and trips abroad.
  • Expensive team sports, like hockey and horseback polo, and expensive solo sports like skiing and scuba diving.
  • Post-secondary education costs, including meal plans and residenceThe geographic place where a person permanently lives. This is different from a person's "domicile" in that a person's residence is more fixed and less changeable in nature. A person's residence can also have an impact on a court's authority to hear and decide a legal action. See "domicile" and "jurisdiction." costsA calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account, "bill of costs," "certificate of costs," and "lawyer's fees.".

To add a little confusion, however, remember what s. 7(1.1) says about what the requesting spouse can "reasonably cover". Where the parents have lots of money, and the resulting basic monthly child support is high, it’s unlikely that many extracurricular activities and educational expenses (those set out in s. 7(1)(d) and (e) of the Guidelines), would be considered extraordinary since a high basic child support amount would likely "reasonably cover" these costs.

Necessity

Sometimes the needs of the child will outweigh the cost of the expense to the child, and an expense will qualify as a special expense whether at a hardship to the parents or not.

  • Medical costs, including costs that aren't covered by MSP such as autism therapies.
  • Counselling services, where the counselling is necessary for the child's mental health.
  • Tutoring services, where the child needs the extra help to get through school.
  • Lessons or coaching in arts and sports, where the child has a special talent that should be nurtured.

A driver training course, for example, is unlikely to qualify as a special expense under the heading of necessity, since you can learn to drive and obtain a driver's licence without it, as was decided in a 2011 Supreme Court caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.", M.S.J. v. J.M.J., 2011 BCSC 245. On the other hand, if a semester with Sylvan Learning Centre will mean the difference between passing or failing a grade, the tutoring would be considered a necessity.

Sharing qualifying expenses

Under s. 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.

The easiest way to calculate a parent's proportionate share is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.

Example #1

If one parent earns $75,000 per year and the other $25,000, the total pot available to the child is $100,000. Of that sum, the first parent contributes 75% and the second parent 25%. As a result, the first parent would be ordered to pay 75% of qualifying expenses, and the second parent 25%.

Example #2

If one parent earns $48,000 per year and the other $62,000, the total of their incomes is $110,000. The first parent's income is 43.6% of the total, and the other parent's income is 56.4% of the total. The first parent would have to pay 43.6% of all qualifying special expenses, and the second would have to pay 54.6% of those expenses.

The cost that is being shared is the net cost of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are usually partly subsidized by the government with certain tax deductions. If $1,000 is spent on daycare, but the government chips in a $200 tax benefit, the amount of the expense shared between the parents would be $800, not the full $1,000.

Note that the income of a parent's new spouse or partner can be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 Supreme Court case of Baum v. Baum, 2000 BCSC 1835 the court held that the s. 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the income of a parent's new partner.

The calculation of income

Before the court even looks at the Child Support Guidelines tables it has to decide what the payor's income is. The tables set out the amount of child support payable according to the payor's income. The Guidelines require that the court use the most up-to-date information available. Sections 15 to 20 of the Guidelines set out the rules the court must apply in determining income.

According to Rule 5-1 of the Supreme Court Family Rules and Rule 4 of the Provincial Court (Family) Rules, when someone makes an application for child support, the payor or both the payor and recipient are required to disclose their financial circumstances using a court form called a Financial StatementA legal document required by the rules of court in which a party to a court proceeding involving child support, spousal support, the division of property or the division of debt must describe his or her income, expenses, assets and liabilities under oath or affirmation. See "affirm," "oath," and "perjury.". Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically:

  1. the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
  2. all notices of assessment and reassessment received for the last three tax years,
  3. the party's most recent paystub, showing his or her earnings to date, or if the party isn't working, then his or her most recent WCB statement, social assistance statement, or EI statement, and
  4. business records like financial statements and corporate income tax returns, if the party has a company.

The basic rule of thumb is that a party's income for the purposes of the Guidelines is the amount stated at line 150 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. Income might include bonuses, rental income, company dividends, government benefits, interest from an investment and so forth, as well as employment and self-employment income.

Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony.". Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. However, if a payor's current income can be known with certainty, such as if the payor is an employee without bonus or commission income, child support can be determined using the payor's current income.

Government benefits

Payments from WCB, Employment Insurance, CPP, Old Age Security, and welfare all count as income under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at his or her usual income. A temporary period on welfare, for example, won't entitle a payor to have his or her income assessed at that unusually low level.

Fluctuating income

Where a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the average of his or her income over the last three years.

Unexpected losses and gains

Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide to take this into consideration in setting the payor's income, and potentially not consider the loss or gain.

Court awards

If a payor has received an award from a civil court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. such as for wrongful dismissal or for personal injury, the court may attribute the portion of the award allocated for lost wages to a payor's income. The whole amount of the award, including the parts relating to pain and suffering, will not be seen as income for the purposes of the Guidelines, just the part intended to compensate for lost wages.

Windfalls

Money received from an inheritanceReal property or personal property received as a result of the provisions of a will or the ''Estate Administration Act''. Inheritances do not usually qualify as family property subject to division between spouses. See "family property," "real property" and "will.", the saleAn agreement to transfer the ownership of property from one person to another in exchange for the reciprocal transfer of something else, usually money. See "agreement." of a house, or a lottery win does not count as income under the Guidelines. It might be family propertyA term under the ''Family Law Act'' referring to property acquired by either or both spouses during their relationship and after separation, if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property." that spouses have the right to share in, but it isn't income for the purposes of child support. Any interest or other investment income earned or that should reasonably be earned from the inheritance or lottery win would count as income.

Imputing income

To impute income means to attribute income to a payor above that which the payor claims he or she earns, usually for making a support award based on that higher amount. Typically, someone asks the court to impute income to a payor where:

  1. the payor works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns,
  2. the payor has quit or been fired from his or her job,
  3. the payor moves from full- to part-time work without a very good reason,
  4. the payor is self-employed and either receives unpaid benefits from his or her company (like a company car, paid meals or a free cell phone), or doesn't report the full amount of money taken from the company,
  5. the payor has refused to provide full and complete financial disclosureA step in a court proceeding in which each party advises the other of the documents in his or her possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial., or
  6. the payor has or will have income from a trustIn law, a form of possession of property in which a "trustee" keeps and manages property for the benefit of another person, the "beneficiary." The trustee holds the property ''in trust'' for the beneficiary. See "constructive trust," "ownership," "possession" and "resulting trust.".

If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special and/or extraordinary expenses may be based on imputed income, including income imputed to the recipient.

The court can decide to impute income for the purposes of calculating child support in other circumstances, such as when the payor is underemployed and unemployed, is income splitting with a new partner, or lives in a place with a lower tax rate than usual.

Underemployment and unemployment

Section 19(1) of the Guidelines says that:

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;
(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 propertySomething which can be owned. See "chattels" and "real 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;

In other words, the court may decide that a payor has a different income than that which the payor says he or she has if:

  1. the payor has quit a job in order to avoid paying child support,
  2. the payor has taken lower-paying work than he or she used to have, or is capable of holding, in order to minimize the amount of child support payable,
  3. the payor has hidden or appears to have hidden some of his or her income,
  4. the payor is not using resources at hand that could generate income, such as a vacant house that could be rented out or savings that could be invested, or
  5. the payor has tried to reduce his or her income by claiming unreasonable deductions.

If you are going to make an argumentIn law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence, or to a written summary of argument. that income should be imputed to someone, you will have to prove that one or more of the conditions described in s. 19(1) exist. In the case of underemployment or unemployment, you will also have to show that the payor has acted in bad faithIntentionally misleading someone else, whether by doing or not doing something; acting in a manner contrary to one's actual intention; failing to act honestly and openly. Also known by the Latin phrase ''male fides''. See ''bona fides''., and is unemployed or underemployed intentionally. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income.

It's not enough merely to argue that one of the conditions listed in s. 19(1) exist, you have to be able to provide evidence that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, Nahu v. Chertkow, 2003 BCSC 1285 in determining whether a payor is intentionally underemployed or unemployed:

  1. the payor's education, training and work experience,
  2. the payor's previous earnings and past borrowing of funds during unemployment,
  3. the payor's work history,
  4. the payor's spending patterns and lifestyle,
  5. the payor's efforts to upgrade his or her education and work qualifications,
  6. the nature and quality of the payor's attempts to obtain employment, and
  7. any evidence that the underemployment or unemployment is motivated by ill will towards the recipient.

This last point, about the payor's ill will, has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 Supreme Court case Hanson v. Hanson, 1999 CanLII 6307 the court had this to say on the subject:

"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answerA response to an allegation of fact or to a claim. Usually refers to documents which reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply." for a person liable to support a child to say that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...
"2. When imputing income on the basis of intentional underemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as the availability of work, freedom to relocate and other obligations.
"3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be earned on the job. ... [C]ourts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.
"4. Persistence in [poorly paid] employment may entitle the court to impute income.
"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.
"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."

"Grossing up" income

Section 19(1) of the Guidelines also says that:

The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(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;
(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.

Under these sections of the Guidelines, payors who have a lower income tax obligation than usual, such as certain First Nations persons living on reserve who might pay no federal taxes, or persons who live in another country with a lower tax rate, can have their income grossed up to reflect this tax advantage when child support is determined.

The grossing up process essentially involves figuring out the amount of money the payor would have to earn to have the same after-tax income at the tax rates normally applicable to residents of British Columbia. This will result in income being imputed to the payor for the purposes of calculating child support, with a consequent increase in the amount of child support that will be payable.

The math behind grossing up someone's income is a bit complex. Essentially, the idea is to figure out the amount of income the person would have to earn before taxes to receive the amount he or she earns net of taxes. Think of it like this:

Say Mr. A earns $100,000 per year. As a resident of British Columbia, Mr. A pays income tax at, for example, 40%. This means that Mr. A's income, net of taxes, is $60,000 per year.
Mr. B also earns $100,000 per year. Mr. B, on the other hand, lives in Texas, and has an income tax rate of, for example, 25%. This means that Mr. B's net incomeThe remainder of a person’s annual income after the mandatory deductions have been paid, which may include CPP, EI, income taxes and union or professional dues. For self-employed persons, necessary and reasonable business and operating expenses may also be deducted to determine net income. is $75,000 per year.
Income for the purposes of the Guidelines would normally be calculated for both Mr. A and Mr. B at a gross income of $100,000. In reality, though, Mr. A has a lot less money after income taxes are paid than Mr. B does. Mr. B actually has a lot more money than Mr. A, and ought to pay child support based on this additional money.
Mr. B's income would be "grossed up" to figure out what income he would have to earn in BC to have an after-tax income of $75,000. Since he would pay income tax at a rate of 40% here, the court would consider Mr. B to have a gross income of $125,000 for the purposes of child support, since tax of 40% on a gross income of $125,000 leaves a net income of $75,000.
Mr. A and Mr. B both have incomes of $100,000 per year. Mr. A will pay his base amount of support at that income, but Mr. B will pay at a grossed up income of $125,000 to reflect what he would have to earn in BC to have the after-tax income of $75,000 he has living in Texas.

Grossing up a payor's income can be a bit tricky, and requires a knowledge of the income tax laws applicable to First Nations payors earning income on First Nations reserve lands and to payors earning income outside of Canada. If you have a problem in this area, you should consider retaining a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." to help you.

Child support and parents' new partners

Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to his or her income in calculating child support. The new partner will want to know whether he or she is now on the hook for support and must contribute to the parent's payments or towards the parent's children.

Basic child support payments

The income of a parent's new partner is not relevant to the payment of child support, nor is a payor's new partner obliged to pay child support. The new partner will not inherit the child support obligation in the event the payor dies, and the recipient of support won't be able to pursue the new partner for continuing or supplemental payments.

For the purposes of calculating the base amount of child support a parent must pay — that is, the parent's basic obligation under the Child Support Guidelines, before special and/or extraordinary expenses — the court will only look at the parent's income. The income of the new partner is not taken into account.

Undue hardship claims

Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause undue hardshipA term used by the Child Support Guidelines to describe circumstances when payment of the table amount of child support would cause financial difficulty for the payor or the recipient, potentially justifying an award of support in an amount different than the table amount. See "child support," "Child Support Guidelines" and "table amount." if the table amount was paid. Payors will claim that the base amount is too high, while recipients will argue that it is too low. This chapter discusses exceptions to the Guidelines more thoroughly in the section, Exceptions to the Child Support Guidelines.

If undue hardship is claimed, the court will look at the standard of living of each parent's household, rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support; it just means that his or her income will be added to the parent's income to see whether the usual table amount of support payable is unduly high or low.

Incomes in excess of $150,000

The tables provided in the Child Support Guidelines set out the amount of support owing by payors who earn up to $150,000 per year. The Guidelines provide a mathematical formula for figuring out what parents earning more than $150,000 must pay, while payors earning less than $10,800 pay nothing.

Section 4 of the Guidelines deals with parents who earn more than $150,000 each year. Under this section, the income (or lack of income) of a parent's new partner may be taken into account in deciding whether the formula gives a fair result. The calculation of support owing by parents with incomes in excess of $150,000 is discussed in more detail in Exceptions to the Child Support Guidelines.

Section 4(b)(ii) of the Guidelines says that when considering the amount payable above the basic amount for a payor whose annual income is $150,000, the court should apply the formula but take into account:

... 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 ...

In other words, the income of a new partner can be taken into account under the general heading of "financial ability" of a spouse in determining whether the formula amount is fair.

Special expenses

Section 7 of the Guidelines allows for sharing of the children's special and/or extraordinary expenses between the parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into account, among other things "the reasonableness of the expense in relation to the means of the spouses and those of the child."

A parent's new partner's income can be taken into consideration in assessing the "means of the spouses," which is exactly what the court did in the 2000 Supreme Court case of Baum v. Baum, 2000 BCSC 1835. In that decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact.", the court held that means of the spouses should be interpreted broadly as including all of the means available to the paying parent, including the income of his or her new partner.

Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income.

Death of the payor

A number of readers have asked whether they will have any responsibility to make child support payments if their partner, a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.

While that is a good general rule, and one you can probably rely on, it is possible that a claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. could be made against the new partner as a stepparentThe spouse of a person who has children from a previous relationship. A stepparent may qualify as a "parent" for the purposes of issues relating to child support and the care and control of a child under both the ''Divorce Act'' and the ''Family Law Act''. See "parent" and "spouse." of the child under the Family Law Act. The actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations." says that all parents, guardians, and stepparents are required to support their children, but s. 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least of one year. In other words, a new partner who marries a paying parent may have an obligation if he or she has contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.

Agreements and orders for child support

Orders for child support

An order for child support typically contains the following elements:

  1. a statement of the names and birthdates of the children for whom support will be paid,
  2. a declarationIn law, a pronouncement of the court about a fact or a state of affairs, such as a declaration that a marriage is void or that a person is the guardian of a child. Not to be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something. See "order." of the payor's income,
  3. an order as to the Guidelines amount payable,
  4. an order about the exchange of income information, and
  5. a statement of the date on which child support will no longer be payable.

These elements look like this in a typical order made under the Divorce Act:

UPON the Court being advised that the children of the marriage are
Jesse Ann Doe, born on 1 March 1998, and
Sandra Alexandra Doe, born on 1 April 2000;
AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;
THIS COURT ORDERS that:
1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children of the marriageA legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits and obligations. See also "conjugal rights," "consortium" and "marriage, validity of."" as defined by the Divorce Act; and,
2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children of the marriage," and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, continuing until such time as the children are no longer "children of the marriage."

Under the Family Law Act, the order would look like this:

UPON the Court being advised that the children are
Jesse Ann Doe, born on 1 March 1998, and
Sandra Alexandra Doe, born on 1 April 2000;
AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;
THIS COURT ORDERS that:
1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the Family Relations Act; and,
2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the Family Law Act, and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, continuing until such time as the children are no longer "children."

The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of his or her income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

When parents have shared custodyA term used by the Child Support Guidelines to describe circumstances when a child's time is shared equally or almost-equally between his or her parents or guardians, often resulting in an amount of support that is different than the table amount. See "child support," "Child Support Guidelines" and "table amount." or split custodyA term used by the Child Support Guidelines to describe circumstances when one or more children live most of the time with each parent or guardian, resulting in an amount of support that is different than the table amount. See "child support," "Child Support Guidelines" and "table amount." of their children, the amount paid is dependantA person who relies on someone else for their support and the necessities of life. See "child," "child support" and "spousal support." on both parties' incomes. The same is true where special expenses are being contributed to; the proportion of those expenses each party will pay depends on both of their incomes. In cases like these, the last clause would be changed to require both parents to exchange their income information on an annual basis, not just the payor, and the court would make a finding about both parents' incomes.

Agreements for child support

Separation agreements, like all family law agreements, have two types of statements. The recitals are statements that talk about the parties and their relationship. They explain the parties' background and why they signed their agreement. The operative clauses of an agreement are statements that say what each party has promised to do.

The recitals to a separation agreement about child support would include statements like these:

D. Jane Doe is a plumber working for ABC Plumbing, earning about $72,000 per year.
E. John Doe is a graphic artist working for Sunny Skies Art and Design, earning about $40,000 per year.
F. Jane and John have two children, Jesse, who is 15, and Sandra who is 13.

The operative clauses about child support might say something like this:

15. Jane will pay child support to John in the amount of $1,092 per month, beginning on 1 April 2013 and continuing on the first day of each month afterwards while Jesse and Sandra remain "children" as defined by the Family Law Act.
16. Jane will give John a copy of her tax return on the first day of May 2014 and continuing on the first day of May of every year thereafter while Jesse and Sandra remain "children" as defined by the Family Law Act. Jane will give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment she received within two weeks of receiving it for so long as the children are still "children."

Child support tables and calculators

The simplified Child Support Guidelines Tables for British Columbia are available from the website of the federal Department of Justice. The federal government has published an online child support calculator.

The provincial government also operates the BC Child Support Info Line which offers free information about child support and the child support tables. Contact the Info Line at:

Lower Mainland: 604-660-2192
Outside the Lower Mainland: 888-216-2211

Resources and links

Legislation

Links


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