Child Support - Amount of Child Support
The amount of child support payable under an order or agreement must, in general, conform to the provisions of the Child Support Guidelines (CSG). The CSG is a regulation to the DA, adopted for the FRA by the Child Support Guidelines Regulation, and includes tables setting out the amount of child support payable by province, indexed to the payor’s income and the number of children support is being paid for. The CSG came into effect on May 1, 1997 and was amended on May 1, 2006 and December 31, 2011 to update the support tables. The amount of support payable according to income changed with each update. It is important to consider the correct tables when calculating any retroactive child support.
Both the DA and FLA require that orders for child support be given priority over spousal support orders. People other than a child’s parents can make applications for child support under the FLA if they are caring for the child, such as grandparents who have custody of their grandchildren, or other persons who have been granted guardianship of a child. In addition to the child’s natural parents, an adoptive or step-parent, including more than one step-parent in some cases, can be responsible for child support.
The CSG tables determine child support based on the income of the payor and the number of children. There is no discretion with respect to the quantum of child support payments unless:
- the child is 19 or older (s. 3);
- one or more siblings live with each parent (split custody, s. 8)
- the child spends 40% or more of his or her time with the payor (shared custody, s. 9);
- the payor’s income is in excess of $150,000 per year (s. 4);
- the payor is a person other than a parent (s. 5); or,
- the payment of the table amount would cause “undue hardship” to either the payor or the recipient (s. 10).
The Family Law Act ranks the child support obligations of payors by their relationship to the child. Parents bear the primary responsibility for the support of a child. The obligation of non-parent guardians is secondary to that of parents. The obligation of step-parents is secondary to both, and extends only so far as may be reasonable considering the length of time that the step-parent lived with the child and the child’s standard of living during that period. These provisions can be found at s. 147 of the FLA.
When the parents have split custody, s.8 of the CSG fixes the amount of support payable as the set-off from the higher-earning parent’s table amount for the number of children in the recipient’s care and the lesser-earning parent’s table amount for the number of children in the payor’s care.
Parents have shared custody when the payor has the children for at least 40% of their time (Green v. Green, 2000 BCCA 310 ). When parents have shared custody, determinations of the amount payable are made with reference to the three part test in s. 9 of the CSG. The court first considers the amount payable pursuant to a set off, and then goes on to factor in the potential increased costs of a shared custody arrangement and the condition, means and needs and other circumstances of each parent and each child. It is important to understand that the “40% rule” does not necessarily result in an automatic reduction to the table amount of child support (Contino v. Leonelli-Contino, 2005 SCC 63). It is only a factor that may be relied upon by the court to reduce the table amount to an amount that the court considers appropriate in the circumstances.
The first step is to consider the set off amount. This is done by determining the annual guideline income of each parent and considering the amount payable by each parent if he or she were paying the full amount of child support. These amounts are then set off from each other to determine the amount payable by one parent to the other. However, the court must then consider the increased costs of shared custody. It may be that the straight set off leaves one parent in a financially superior position to the other parent. The court tries to avoid very different standards of living between the two homes when the children are residing in the two homes on a roughly equal basis. Too many people stop at the first step and do not consider the next two steps. Be sure to consider all three parts of the section.
Special and Extraordinary Expenses
In addition to the CSG table amount paid by the payor, the court has the discretion under s. 7 of the CSG to award an additional amount to cover special or extraordinary expenses related to the child. “Special or extraordinary expenses” are defined in s. 7 of the CSG, and what qualifies as a special and extraordinary expense will change depending on the income available to the family and the needs of the children. Where an expense is found to be a special and extraordinary expense, the parties will contribute to the net cost of the expense, after deducting any subsidies or contributions from the child, in proportion to their incomes. For example:
Payor’s income = $30,000 Recipient’s income = $20,000 Total family income available to children = $50,000 Payor’s income ÷ total family income = 0.6 ×100 Payor’s proportionate share = 60%
Where spousal support is also payable, the proportionate share of special and extraordinary expenses will change to take into account those payments. Software exists that will assist you with performing both child support and spousal support obligations.
Much of the activity in litigating child support obligations has focused on determining what expenses fall within the category of special and extraordinary expenses. For example, ballet lessons, music lessons, karate, school tutoring programs, and language classes have all been the subject of determinations by the court. It is very important to determine just what kinds of such expenses were incurred by the parents when they were living together. If certain activities were beyond the budget of the family prior to separation, it is not likely they will be justified after separation. Expenses normally incurred prior to separation will usually continue after.