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1. Factors in Calculation of Child Support

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JINKEE BANTUG
 Factors in Calculation of Child Support

Founding Authors: Cheryl Goldhart, Goldhart & Associates and Annie Noa Kenet, Kenet Family Law Professional
Corporation. Updating Authors: Cheryl Goldhart, Surinder Multani, Andrew Vankoughnett and Megan O'Neill,
Goldhart & Associates.

Go to: Child Support: Presumptive Rule | Defining Custody | Shared Custody | Split Custody | Parallel
Parenting | Third-Party Custody | Step-Parent Obligations | Children over Age of Majority | Medical and
Dental Insurance for Children | Lump-Sum Child Support Payments | Security for Child Support

Current as of: 01/26/2021

This practice note sets out the factors in calculating child support, including the presumptive rules in the Child
Support Guidelines, SOR/97-175, for calculating the amount of child support payable for children. Also discussed
are the concepts of custody (decision-making authority and physical custody or residential schedule) and how it
impacts the calculation of child support under the Federal Child Support Guidelines. Each type of custodial
arrangement is further discussed including: shared custody, split custody, parallel parenting, third-party custody
and step-parent obligations. This practice note also sets out the obligations to pay child support for children over
the age of majority, the role of the court in ordering the maintenance or acquisition of medical or dental insurance
coverage for a child, the lump sum payment of child support and circumstances where the court may require a child
support order to be secured by the payor, as well as the methods by which this is achieved.

Specifically, this practice note provides guidance on the following issues concerning the factors in calculation of
child support:

• Child Support: Presumptive Rule

• Defining Custody
• Shared Custody
• Split Custody
• Parallel Parenting
• Third-Party Custody
• Step-Parent Obligations
• Children over Age of Majority
• Medical and Dental Insurance for Children
• Lump-Sum Child Support Payments
• Security for Child Support

For information on circumstances where deviation from the table amount of child support may occur, see: Child
Support: Presumptive Amount Deviation. For more information on the statutory framework for child support, see the
practice note: Child Support: Statutory Framework. For more information on the definition of custody, see the
practice note: Definition of Custody. For more information on the two types of parallel parenting, divided vs. full,
see the practice note: Parallel Parenting Types: Divided vs. Full. For more information on Bill C-78 and how it will
affect terminology related to custody and access, see: Legislative Update (2019 06) and Legislative Update (2018
05). For information on the statutory authority for the Family Responsibility Office (“FRO”) and its impact on
enforcement of support, see the practice note: FRO Background. For information on the key elements to consider
when making a section 7 expense claim, see the practice note: Section 7 Expense Claims. For more information on
the two types of health expenses that qualify as section 7 expenses, see the practice note: Health and Medical

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Expenses. For more information on types of security that may be obtained for support obligations, see the practice
notes: Security Considerations and Security Types. For more information on child support for adult children, see the
practice note: Child Support for Adult Children. For sample court documents seeking table child support and section
7 expenses, see the precedents: Notice of Motion (Child Support Claim, Table Support and Section 7 Expenses)
(Sample), Affidavit (Child Support Claim, Table Support and Section 7 Expenses) (Sample) and Factum (Law and
Argument Section) (Child Support Claim, Table Support and Section 7 Expenses). For a sample clause seeking an
order for set-off table child support in a split custody arrangement, see: Set-Off Table Child Support Clause (Split
Custody). For a sample clause seeking security for support in the form of a life insurance, see: Security for Support
Clause (Life insurance, Irrevocable Beneficiary Designation). For an Affidavit form and a Notice of Motion form, see:
Affidavit (General) (Form 14A) and Notice of Motion (Form 14).

Child Support: Presumptive Rule

The calculation of child support is governed by the Federal Child Support Guidelines under the Divorce Act, R.S.C.
1985, c. 3 (2nd Supp.), and the Provincial Child Support Guidelines, O. Reg. 391/97, under the Family Law Act,
R.S.O. 1990, c. F.3 (“FLA”). In an effort to provide predictability for the calculation of child support, the Federal Child
Support Guidelines set out presumptive rules for the calculation of the amount of child support payable with respect
to both children over and under the age of majority.

For children under the age of majority, the quantum of child support payable is the amount set out in the applicable
table, combined with any section 7 expenses (Federal Child Support Guidelines, s. 3(1)). Similarly, for children over
the age of majority, the quantum of child support payable is the amount set out in the applicable table. See below
for more information on the quantum of child support for children over the age of majority.

If the payor spouse resides in Canada, the applicable table is based on the province in which that spouse ordinarily
resides. However, if the payor spouse resides outside of Canada, then the applicable table is based on the ordinary
residence of the recipient spouse (Federal Child Support Guidelines, s. 3(3)).

Calculating the Presumptive Guideline Table Amount

There are numerous online calculators available, as well as simplified and full tables, which assist in the calculation
of the presumptive table amounts. The only information required to determine the amount is:

• the province of residence of the payor parent;

• the annual gross income of the payor parent; and
• the number of children for which child support is to be paid.

By inputting this information into one of the online calculators (or looking up the information in the applicable table),
the amount of monthly support payable under the presumptive Table amount will be calculated. For one example of
an online calculator, see: Department of Justice: Child Support Table Look-Up.

Defining Custody

What Is “Custody”?

There are different definitions of custody depending on the context of discussion. In the parenting context,
custody is generally understood as “decision-making power” (see practice note: Definition of Custody). With
respect to the types of decisions involved in custody, there are four major types of decisions that parents will have
to make for their children:

1 education (e.g., what school they go to, daycare, tutoring, university);

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2 health/medical treatment (e.g., braces, counselling and/or medication for mental health issues);
3 religion; and
4 extra-curricular activities (e.g., violin, horseback riding, swimming).

The reasons of Justice Chappel in V.K. v. T.S., [2011] O.J. No. 4046 at paras. 68–69 (S.C.J.), describing the
terminology of custody orders are similarly instructive.

It is important to note that, on June 21, 2019, An Act to amend the Divorce Act, the Family Orders and Agreements
Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make
consequential amendments to another Act (Bill C-78) received Royal Assent. Although some of the amendments
are not yet in force, Bill C-78 will introduce substantial changes to federal family law legislation including the Divorce
Act. Terminology related to custody and access will be replaced with parenting. For example, “custody orders”
will change to “parenting orders” and “access orders” will change to “contact orders”. For more information on Bill
C-78, see: Legislative Update (2019 06) and Legislative Update (2018 05).

The amendments were originally set to take effect on July 1, 2020, however, due to the extraordinary
circumstances related to the COVID-19 pandemic, these changes have been deferred to March 21, 2021.

What Is “Custody” for Child Support Purposes?

In the context of any discussion on custody and its impact on child support, it is necessary to draw attention to the
different terminology used in the Federal Child Support Guidelines, which distinguish custody and “physical
custody”. Specifically, s. 9 of the Federal Child Support Guidelines defines custody in terms of the amount of time
the child spends with a parent in the space of a year. To that end, there are five types of custodial arrangements
that can arise:

1 Sole Custody;
2 Joint (Shared) Custody;
3 Split Custody;
4 Parallel Parenting (see practice note: Parallel Parenting Types: Divided vs. Full); and
5 Third-party custody.
Shared Custody

The presumptive Federal Child Support Guidelines amount assumes that one parent has custody and primary
residence of the children, such that, that parent would be primarily responsible for the expenditures related to the
children. Where the children spend more or less equal time with the parents, both parents will have expenditures
for the children, including some overlapping expenditures. Section 9 of the Federal Child Support Guidelines
governs the calculation of child support when the parents have shared custody. According to s. 9, when a spouse
exercises their right to access of a child for at least 40% of the time of over the course of a year, the child support
order must consider three factors:

1 the applicable table amount for each of the spouses (Federal Child Support Guidelines, s. 9(a));
2 the increased costs of the shared custody arrangement (Federal Child Support Guidelines, s. 9(b)); and
3 the conditions, means, needs and other circumstances of both spouses, as well as any child for whom
support is sought (Federal Child Support Guidelines, s. 9(c)).

Calculating 40% Threshold

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In order for s. 9 to be considered, the support payor must care for the children at least 40% of the time. Whether the
parenting situation is labelled sole or joint custody is irrelevant, as the Federal Child Support Guidelines simply
focus on the amount of time the children spend with each parent. However, the Federal Child Support Guidelines
do not specify how the time is to be calculated and this can lead to significant disagreement between parents.
Various methods have been used to calculate the time spent with the payor parent, such as counting days or
counting hours. There is no universally accepted method for calculating the 40% threshold (Froom v. Froom, [2005]
O.J. No. 507 (C.A.)).

If the 40% threshold is not met, then the inquiry ends and the presumptive table amount governs. Where the
threshold is met, then the inquiry continues to determine the appropriate amount of support.

Calculation of Support under Contino

In Contino v. Leonelli-Contino, [2005] S.C.J. No. 65, the court provided an in depth analysis of s. 9 of the Federal
Child Support Guidelines. According to Contino, the first part of a s. 9 analysis involves establishing that the 40%
access threshold over a course of a year has been met. In cases where the threshold has been met, the court then
must consider the specific facts of each case when determining how much weight to place on each of the three s. 9
factors. Of note is that once the 40% threshold has been met, there is no presumption in favour of deviating from
the Federal Child Support Guideline amount.

Section 9(a)

Section 9(a) of the Federal Child Support Guidelines, provides that the court should consider the applicable table
amount for each of the spouses. The starting point for this analysis is a simple set-off of the parties' respective table
amounts - namely the difference between the table amounts for both parents. Once the baseline of child support
has been established, the court should then compare the amount of table support payable to the actual child-related
expenses that a spouse contributes throughout the year to determine if the baseline should be modified. Lastly, the
court retains the right to modify the baseline amount if it would result in a significant variation in the child's standard
of living as they move from one household to another.

Section 9(b)

Section 9(b) of the Federal Child Support Guidelines provides that the court should consider the increased costs of
the shared custody arrangement. The court will begin their analysis by examining both of the parents' budgetary
and actual childcare expenses. The increased costs of a shared custody arrangement can then be determined
based on expenses duplicated by both parents. This increase should then be apportioned between the parents
based on their respective incomes.

Section 9(c)

Section 9(c) of the Federal Child Support Guidelines provides that the court should consider the conditions, means,
needs and other circumstances of both spouses, as well as any child for whom support is sought. The court begins
their analysis by emphasizing that common sense assumptions should not be made with respect to expenses.
Rather, the court should look at a sworn financial statement, or adjourn in order to allow the parties to provide
additional evidence. Once all of the relevant evidence has been provided, the court provides three factors which
should be considered when determining the conditions, means, and needs of both spouses:

1 the actual spending patterns of the parents;

2 the ability of each parent to bear the increased costs of shared custody by considering the assets,
liabilities, incomes levels, and income disparities of the parents; and
3 the standard of living for the children in each household.

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Factors in Calculation of Child Support

Finally, the analysis should be performed with the backdrop of the best interests of the child, as well as the ability of
each parent to absorb the costs required to maintain the appropriate standard of living.

Applying Contino and Section 9 in Practice

It can be difficult to make an application under s. 9 of the Federal Child Support Guidelines given the significant
information and various arguments that can be made by either party. Applying the guidance set out in Contino is
difficult and complicated. Often, parents will avoid this all together by simply agreeing to either apply the child
support guidelines or to slightly vary the child support guidelines in a manner that works for them.

Split Custody

A split custody arrangement is one where each spouse assumes custody of one or more of the children of the
marriage. Thus, each spouse has the added costs of maintaining a household with a least one child.

Calculation of Support

When split custody is present, s. 8 of the Federal Child Support Guidelines, dictates that the quantum of child
support payable is calculated as the set-off amount of the parties' respective table amounts. Thus, the courts will
find the difference between what each spouse would otherwise have to pay in support based on the Federal Child
Support Guidelines. While s. 8 does not directly provide any discretion with respect to the quantum of support, the
courts can use other mechanisms such as section 7 expenses or undue hardship claims (Federal Child Support
Guidelines, s. 10) in order to indirectly vary the total amount of support payable.

Split Custody Example

Parent A has custody of Child 1. Parent A earns $50,000 a year.

Parent B has custody of Children 2 and 3. Parent B earns $100,000 a year.

Both parents live in Ontario.

Calculating the Table amounts under the 2019 Federal Child Support Guidelines indicate that:

• Parent A would pay $755 a month in support for two children.

• Parent B would pay $910 a month in support for one child.

The set off is that Parent B pays Parent A $155 per month.

For sample clauses to insert in an offer to settle or separation agreement where there is a split custody
arrangement, see: Set-Off Table Child Support Clause (Split Custody).

Parallel Parenting

Although parallel parenting contemplates custody as decision-making power, many of these cases have
parenting schedules where the parties have physical custody of the child nearly equally.

In Ursic v. Ursic, [2006] O.J. No. 2178 (C.A.), the parties had an approximately equal access schedule and child
support was calculated as an offset of the parties’ respective child support obligations to one another.

Conversely, in Hoffman v. Hoffman, [2013] O.J. No. 289 (S.C.J.), the children resided with the mother more than

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60% of the time and the father was ordered to pay full Federal Child Support Guidelines support and his
proportionate share of section 7 expenses.

Thus, it appears that child support in a parallel parenting regime will either be the full table amount or the offset
amount, depending on the parenting schedule and whether the case meets the 40% threshold in s. 9 of the
Federal Child Support Guidelines.

Third-Party Custody

Defining Third-Party Custody

Third-party custody arises in a situation where both parents are either unwilling or unable to hold custody of a
child. There are many situations where such a scenario can come to pass, such as where the parents are unable
to provide care because of death, mental health issues, substance abuse, disability or because of the involvement
of child protection authorities. There are also cases under this category where children have brought applications
for support against their parents while in the custody of other family members.

For the purposes of this practice note, the issue has been limited to cases where children were removed from the
care of their parents and placed in the care of third parties to whom they are related, usually grandparents or aunts
and uncles.

Threshold Issues: Standing

One of the threshold issues that have arisen in a number of these types of cases is the issue of whether the third
party has the standing to claim child support from the parents of the child. Some of the cases dealing with standing
include Perovic v. Nagtzaam, [2001] O.J. No. 3462 (C.J.), and Abell v. Abell, [2003] S.J. No. 576 (Q.B.).

In both cases, the third parties (a grandmother and aunt respectively) were found to have standing.

Perovic relied on ss. 1(1), 33(2) and 34(1)(e) of the FLA to conclude that third parties have the standing to bring
applications for support.

Subsection 33(2) of the FLA empowers a third party to bring this application, stating:

An application for an order for the support of a dependant may be made by the dependant or the dependant's parent.

A "parent" is defined in s. 1(1) of the FLA:

"parent" includes a person who has demonstrated a settled intention to treat a child as a child of his or her family…

Section 34(1)(e) of the FLA states:

In an application [for support] under section 33, the court may make an interim or final order,

...

(e) requiring that some or all of the money payable under the order be paid into court or to another appropriate person or
agency for the dependant's benefit [emphasis added].

In conclusion, the combined effect of these sections is to give standing to third parties seeking child support
payments from the parents of a child in their custody.

Child Support and Third-Party Custody

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The general outcome with respect to child support in these cases appears to be that both parents are under the
obligation to pay child support to the third party pursuant to the Federal Child Support Guidelines and in accordance
with their respective incomes.

Such was the case in Kojic v. Kojic, [2013] O.J. No. 3365 (C.J.), where two daughters lived with their maternal
grandparents and commenced and sought support from their father and mother. Both parents were ordered to pay
Guidelines support based on their actual or imputed income.

Similarly, in M.L.A.R. v. F.G.T.R., [2011] N.S.J. No. 148 (Family Ct.), where the grandparents sought child support
for their grandchild from both parents, each parent had to pay child support in an amount closely corresponding
with the Federal Child Support Guidelines.

It is worth noting, however, that the biological parents are not the only persons obligated to financially support a
child. Where third parties stand in the place of a parent to a child, and one would be hard-pressed to argue that a
third party with custody of a child did not, they risk becoming liable to pay child support should a court
subsequently change custody or if relations between the third party and the child deteriorate. Such was the case in
Skinner v. Cullen, [2009] N.S.J. No. 402 (S.C.C.), where grandparents who had been granted custody of their
grandchild subsequently separated. The grandmother sought child support for the grandchild from the grandfather
and was awarded Guidelines support. Another similar case was Chinoy v. Aikman, [1991] O.J. No. 561 (Gen. Div.),
where the mother was not able, emotionally or physically, to look after her two children, ages 9 and 4. The father
was often absent without giving notice of his whereabouts. The parents agreed that the maternal grandparents
should have custody, with access by the father, who agreed to pay monthly child support of $200. The paternal
grandparents, who had urged the father to seek custody, agreed only grudgingly that custody be granted to the
maternal grandparents. The paternal grandparents sought access, but refused to pay any child support. Justice
Mercier granted custody to the maternal grandparents (access to paternal grandparents), and also ordered the
paternal grandparents to pay support reasoning that, while access is not dependent upon or tied to support, it can
lead to the conclusion that the persons exercising access have assumed such parental responsibility as to place
them in the position of having demonstrated a settled intention to treat the children as children of their family. Such
was the case here and, accordingly, the paternal grandparents were ordered to pay $100 per month support,
indexed for inflation.

Section 7 Expenses for Third Parties

The issue of allocating contributions to a child’s section 7 expenses where a third party has custody or where there
are more than two people obligated to support a child is muddled to say the least.

In his essay “Fast Food for Thought on the Federal Child Support Guidelines for Judges on the Road”, Julien D.
Payne of the Law Foundation of Saskatchewan discussed circumstances where there may be multiple parents who
are obliged to pay child support. Section 5 of the Federal Child Support Guidelines confers a broad discretion on
the court to apportion the child support obligation between the biological and non-biological parents:

5. Spouse in place of a parent — Where the spouse against whom a child support order is sought stands in the place of a
parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers
appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.

There is no consistency in the judicial approach to s. 5 of the Federal Child Support Guidelines, and Justice
Hardinge J. of the Supreme Court of British Columbia identified at least six different methods of apportioning child
support between multiple parents in the reasons in Adler v. Jonas, [1998] B.C.J. No. 2062 at para. 32 (S.C.):

(a) Apportion mathematically, taking as the amount due the total expenses of the child and distributing this among payors
according to the ability of each to pay (Garad v. Garad, [1996] B.C.J. No. 1165, May 21, 1996, Van. Reg. D037200 S.C. - a
pre-Guidelines case under the Divorce Act);

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(b) Add the incomes to get the total incomes of all the parents, find the Guideline amount for that figure and then divide that
amount pro rata among the payors based on the percentage of the total income earned by each. (This approach was
rejected in Beatty v. Beatty, [1997] B.C.J. No. 2269, April 24, 1997 [Filed: October 16, 1997], Vic. Reg. CA02831 [Registry:
V02831] and Gordon v. Paquette, [1998] B.C.J. No. 225, January 9, 1998, Chilliwack Reg. E0398 C.A.);

(c) Apportion the amount of support due according to the role each contributor plays in the life of the child (Dusseault v.
Dolfo, [1998] B.C.J. No. 1209, March 28, 1998, Kamloops Reg. 6157, 6158 and 6159 - Provincial Court);

(d) Treat each payor individually and apply the Guidelines, with the possibility of an excess of support (Gordon v. Paquette,
supra);

(e) Determine the amount due from the last payor under the Guidelines, then subtract from it any being paid by a previous
payor (Ruth v. Young, [1997] B.C.J. No. 1848, August 1, 1997, New West. E3910, S.C. and Nay v. Nay, 1998, New West.,
per Bennett J.); and

(f) Consider Guidelines amount for each payor, but also consider the means, needs and circumstances of the parties, the
relationship between each potential payor and the child, its length, whether it continues and the extent to which the child
relies on the support of the payor (Singh v. Singh, [1997] B.C.J. No. 2195, September 25, 1997, Kamloops Reg. D11364,
[Registry: 011364] S.C. and White v. Rushton, [1998] B.C.J. No. 422, February 19, 1998, Campbell River Reg. D3640,
S.C.).

In several cases the custodial third parties, owing to the fact that they stood in place of a parent to a child, were
required to contribute to the child’s section 7 expenses.

In Bird v. Moreau, [2002] S.J. No. 544 (Q.B.), a grandmother and mother had joint custody of a child and sought to
have the father contribute to the child’s section 7 expenses. The court calculated all three of the parties’ incomes
and ordered that the father pay his proportionate share.

Similarly, in M.L.A.R. v. F.G.T.R., the court held that the guardians must contribute to the child’s orthodontic
expenses and fixed their contribution at one-third of the cost, although there was no mention of what the guardian’s
incomes were and whether this amount represented a proportionate or other share of the cost. The court did state,
however, that guardians are required to contribute to these expenses and that parents are required to share
expenses in proportion to their incomes.

Step-Parent Obligations

Section 5 of the Federal Child Support Guidelines, provides the court with discretion to determine the quantum of
support, if any, that a spouse must pay for their step-child. The first threshold issue that must be decided is whether
the step-parent has stood in the place of a parent, in which case an order for support can be made against the
step-parent. The factors to be considered were enunciated by the Supreme Court of Canada in Chartier v. Chartier,
[1998] S.C.J. No. 79 as follows:

• The nature of the relationship, including the opinion of the child regarding the relationship with the step-
parent; however, particular attention is to be given to the representations of the step-parent and the court
may infer intention from actions. A step-parent cannot unilaterally withdraw from a relationship in which he
or she stands in the place of a parent.
• The actual fact of forming a new family is a key factor in drawing an inference that the step-parent stands
in the place of a parent to the child.
• Whether the child participates in the extended family in the same way as would a biological child.
• Whether the person provides financially for the child (depending on the ability to pay).
• Whether the person disciplines the child as a parent.

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• Whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she
is responsible as a parent to the child.
• The nature of existence of the child's relationship with the absent biological parent.

The test under the Divorce Act and the FLA to determine whether a person "stands in the place of a parent"
(wording in the Divorce Act, s. 2(2)) or "has treated a child as a child of his or her family" (wording in the FLA, s.
1(1)) are the same (Kincaid v. Arsenault, [2002] O.J. No. 1516 at para. 26 (S.C.)).

Calculating the Amount to Be Paid by a Step-Parent

Given that the quantum of support is purely discretionary, the individual facts of the case are of utmost importance.
The Ontario Court of Justice in Boivin v. Smith, [2013] O.J. No. 3479 (C.J.), endorsed the following roadmap
provided by the British Columbia Court of Appeal in U.V.H. v. M.W.H., [2008] B.C.J. No. 717 (C.A):

• Section 3 of the Federal Child Support Guidelines provides the presumptive rule that a biological parent
must pay child support in accordance with the appropriate table amount.
• Section 5 of the Federal Child Support Guidelines is an exception to the presumptive rule found in s. 3,
which provides the court with the discretion to determine what is appropriate, having regard to these
Guidelines and any other parent's legal duty to support the child.
• A section 5 analysis requires that the legal duties of the biological parent be considered and quantified
when support from a step-parent is sought.
• A mother cannot choose to give a biological father a "pass" in favour of pursuing the stepfather for all the
support the children require.
• If the "piling on" of Guidelines amounts would result in a standard beyond one that is reasonable in the
context of the standard that the children have previously enjoyed, then support is likely inappropriate.
Where three or more parents' contributions are needed to provide the children with a reasonable standard
of living, then the stepparent and non-custodial parent (biological father) may well be required to pay full
Guidelines amounts.
• Where a natural or adoptive parent is not available or unable to pay full Guidelines support, the step-
parent may have to pay his or her full table amount.
• The inquiry of appropriateness under the Guidelines is not a wide open discretion; the inquiry like the
Guidelines themselves must focus on the children and their needs.
• The objectives found at s. 1 of the Guidelines which include a "fair standard of support" and "reduction of
conflict between parents" are relevant to the determination of appropriate support by a stepparent.
• Primacy should be given to the children's standard of living given the "children first" perspective of the
Guidelines (Boivin, at para. 102).

Methods of Calculating the Quantum of a Step-Parent's Obligation

The courts have established a wide variance in their approach to calculating child support obligations of a step-
parent. The court in Mancuso v. Weinrath, [2005] B.C.J. No. 2509 (S.C.), summarized the four main approaches
which have been utilized in the case law:

1 Non-Mathematical. Rather than use a mathematical equation, the court weighs of the factors in the case
and uses their discretion whether to reduce the Guideline amount of support.
2 Subtraction. The court will subtract the payments made by the noncustodial natural parent from the step-
parent's child support obligation under the Guidelines.

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3 Cumulative. The court makes no deduction from the step-parent's child support obligation under the
Guidelines despite the fact that the natural parent is paying support.
4 Apportionment Based on Fair Standard of Support. The court determined the step-parents liability for
child support based on the monetary amount required to maintain a fair standard of support for the child,
and apportions the responsibility for meeting that standard between the parents. The court in Mancuso
further provided the following three methods of apportionment once the fair standard of support amount
has been determined:
○ Top-Up. A two-step process which involves:
1. determining the shortfall between the standard and the ability of the biological parents to meet
that shortfall; and
2. assigning liability to the step-parent for the shortfall to the extent that it is lesser than or equal to
their table amount.
○ Means-Based Proportionality. The obligation between the parents is apportioned with respect to
their ability to pay.
○ Relationship-Based Proportionality. The non-custodial parents share in the financial responsibility
in proportion to their involvement with the child (Mancuso, at paras. 30-59).
Children over Age of Majority

While it is standard practice that parents are responsible to pay child support for their minor, it is becoming more
common for their obligation to continue once their child reaches the age of majority. According to s. 15.1(1) of the
Divorce Act, spouses have an obligation to pay support for all of the children of the marriage. Children of the
marriage is further defined to include a child the age of majority or older who is under their parent’s charge but
unable, by reason of illness, disability, or other cause, to withdraw from their charge or to obtain the necessaries of
life (Divorce Act, s. 2(1)).

Once entitlement to child support for an adult child is met, s. 3(2) of the Federal Child Support Guidelines quantifies
the amount of support payable as:

• the amount determined by applying the Federal Child Support Guidelines as if the child were under the age
of majority; or
• if the court considers that approach to be inappropriate, the amount that it considers appropriate, having
regard to the condition, means, needs and other circumstances of the child and the financial ability of each
spouse to contribute to the support of the child.

Attendance at Post-Secondary Institution

The most common factor which a spouse can claim child support occurs when their adult child continues to be a
student in either college or university. While simply being enrolled in post-secondary education is not in itself
enough to justify an obligation to pay support, in practice the courts will almost always order support to be paid. The
court in Farden v. Farden, [1993] B.C.J. No. 1315 (S.C.), provide the following factors which should be considered:

• whether the child is a full-time or part-time student;

• the child’s eligibility for student loans or other financial assistance;
• the career plans of the child;
• the ability of the child to self-contribute through part-time employment;
• the age of the child;

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• the child’s past academic performance;

• whether the parents made plans for their child during cohabitation; and
• in the case of a mature child, whether they have unilaterally terminated a relationship from the parent
whom support is sought.

Once entitlement has been met via the factors set out in Farden, the amount of support must be determined
pursuant to s. 3(2) of the Federal Child Support Guidelines. When determining the quantum of support, the courts
will pay close attention to whether the child is attending an out of town school. Where the child is based out of town
for the academic year, the court will typically reduce the table amount since the child is no longer living at home.
The child's cost of living becomes treated as expenses under s. 7 of the Federal Child Support Guidelines for the
purposes of support.

Medical and Dental Insurance for Children

Section 6 of the Federal Child Support Guidelines permits the court to order that medical or dental insurance
coverage be maintained or acquired for the child. The wording of s. 6 requires that the coverage be available
through a spouse's employment or be available at a reasonable rate.

Counsel should always canvass with the client:

• whether coverage is available through either or both spouse's employment and, if so, the cost (if any) to
obtain the coverage;
• if coverage is available, whether the family obtained the coverage and, if so, whether it was single (i.e., for
the employee spouse only) or family coverage;
• if coverage is not available through either spouse's employment, whether the family obtained private
coverage and, if so, the cost.

Note that the cost of health premiums may be considered a special or extraordinary expense to be apportioned
between the parties. For further information, see practice note: Health and Medical Expenses.

Lump-Sum Child Support Payments

Although the table amounts set out in the Federal Child Support Guidelines assume that support will be paid
periodically, in monthly installments, s. 11 of the Federal Child Support Guidelines does permit child support to be
paid in a lump-sum or in a combination of a lump-sum and periodic payments. The concern with lump-sum
payments is that they may amount to a redistribution of wealth under the guise of support.

Lump-sum orders may be appropriate:

• where there is a serious risk that the payor would not comply with a periodic order (see, for example,
Trinidad v. Trinidad, [2007] O.J. No. 4801 (S.C.); and Tu v. Tu, [2000] O.J. No. 1336 (S.C.), where an
equalization payment and transfer of the matrimonial home was offset against child support arrears and
future child support); or
• where the payor had sufficient capital to make a lump-sum payment but limited ongoing ability to make
periodic ones (Valenti v. Valenti, [1996] O.J. No. 522 (Gen. Div.), affd [1998] O.J. No. 2242 (C.A.)).
Security for Child Support

Section 12 of the Federal Child Support Guidelines provides that the court may require a child support order be
secured by the payor. The purpose of securing a child support order to ensure that the child receive his full legal

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right to support. Since a child support order survives the death of the payor spouse, the court typically requires
security in order to ensure that the child will continue to receive support from the estate.

One of the most common ways of securing support is requiring the payor spouse to maintain a life insurance policy
with the child as the irrevocable beneficiary. Further, the FRO is an invaluable resource for securing and enforcing
support payments. By default, all court orders are automatically filed with FRO unless the spouses mutually agree
to withdraw. FRO has the jurisdiction to enforce support payments through the following methods:

• garnishment of wages;
• registering a lien against personal property or real estate;
• garnishing money from bank accounts;
• suspending drivers licences;
• reporting non-payments to the credit bureau; and
• cancelling passports.

See also the practice notes: Security Considerations and Security Types for further information.

It is important to note, Bill C-78 (as mentioned above) introduced changes to the Family Orders and Agreements
Enforcement Assistance Act, R.S.C., 1985, c. 4 (2nd Supp.) (“FOAEAA”), and the Garnishment, Attachment and
Pension Diversion Act, R.S.C., 1985, c. G-2 (“GAPDA”). Specifically, Bill C-78 proposes changes to FOAEAA to
allow the federal government to release income information (i.e., information from tax returns) for an individual to a
court for the purposes of establishing, varying or enforcing family support. The release of income information will
reduce costs associated with obtaining income disclosure and ensure support amounts reflect the parent’s true
capacity to pay. The effect of these amendments is to reduce the risk of poverty, especially for children and low
income and lone-parent families. In addition, there are safeguards to account for circumstances of family violence
when an applicant seeks release of information for the purposes of varying support. The court must be satisfied that
the release of tracing information will not likely jeopardize the safety and security of any person. If an applicant
makes an application for release of information without notice to the other party, they must provide and satisfy the
following:

• a recent criminal record check; and

• an Affidavit that sets out:
○ the previous court order under review
○ document(s) confirming that there is a restriction on the applicant’s ability to communicate or contact
the person whose information is sought; and
○ whether the applicant caused or attempted to cause physical harm or has caused the person to fear
for their safety or security or that of another person (i.e., child).

Once a court is satisfied that the releasing of information will not jeopardize the safety and security of any persons
and the court orders the information to be released pursuant to the FOAEE, such information must be sealed and
kept in a location to which the public has no access.

Bill C-78 will also make amendments to GAPDA to ensure that garnishment applications enforcing a family support
obligation are processed first and prioritized over all other debts, except for Crown debts.

End of Document

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