2006 Amendments to the Federal Child Support Guidelines

Endnotes

  • [1]  Len Fishman has been practicing family law in Manitoba for over 30 years. He taught family law at the University of Manitoba Law School as a sessional lecturer in the Clinical Family Law course and was the Course Head for the Family Law Section of the Law Society's Bar Admissions Program, for over 10 years. He is a member of the Manitoba Bar Association and court committees, currently including the Child Support Guidelines Advisory Committee.

  • [2]  SOR/97-175

  • [3]  R.S.C. 1985 (2 nd Supp), c. 3. Simultaneously, the Income Tax Act , R.S.C. 1985 (5 th Supp.) c. 1, was amended to remove the related income tax provisions that formerly allowed child support to be deducted from the payor's income and included in the recipient's income. The provisions remain for those orders pronounced prior to introduction of the Federal Guidelines on May 1, 1997.

  • [4]  This has occurred in: Manitoba SOR/98-288; New Brunswick SOR/98-256; and Quebec SOR 97-237.

  • [5]  C.C.S.M. c. F20.

  • [6]  Barker , 2005 BCCA 177.

  • [7]  In Park v. Thompson , [2005] W.D.F.L. 2656, [2005] W.D.F.L. 2639, [2005] W.D.F.L. 2644, 252 D.L.R. (4th) 730, 13 R.F.L. (6th) 415, 197 O.A.C. 158, 77 O.R. (3d) 601 (Ont. C.A. ), the Court held that a trip to investigate an English university and a school ski trip did not meet the standard.

  • [8]  See Raftus (1998), 166 N.S.R. (2d) 179, 498 A.P.R. 179, 159 D.L.R. (4th) 264, 37 R.F.L. (4th) 59, [1998] N.S.J. No. 119 (N.S.C.A.) where that Court per Flinn J.A., relying upon the dictionary definition of "extraordinary" as "1. Out of the usual or regular course of order, special. ... 3. Of a kind not usually met with, exceptional; ... 4. Exceeding what is usual in amount, degree, extent, or size, ... 5. Additional to what is usual, extra" , (at p. 48) held, a t p. 54 "The incomes of the parents will be considered, by the trial judge, after the expense has been found to be extraordinary, and after the expense has been found to be necessary, in the child's interest. Then - and only then - do the incomes of the parents come into play to assist the Court in determining whether an amount, and what amount, should be ordered to be paid." The Manitoba Court of Appeal in Andries, (1998), 159 D.L.R. (4th) 665, 126 Man. R. (2d) 189, 167 W.A.C. 189, 36 R.F.L. (4th) 175, [1998] 7 W.W.R. 536, 7 W.W.R. 536, [1998] M.J. No. 196 , similarly held that the test was strictly objective.

  • [9]  See for example, Francis v. Baker , [1999] 3 S.C.R. 250, 1999 CarswellOnt 2948, 177 D.L.R. (4th) 1, 246 N.R. 45, 125 O.A.C. 201, 44 O.R. (3d) 736 (headnote only), 50 R.F.L. (4th) 228, 3 S.C.R. 250, [1999] S.C.J. No. 52 where the Supreme Court of Canada ordered table support payable by a father earning in the range of a million dollars annually, but no amount for extraordinary expenses. Other cases have held differently, for example, such as in Marinangeli (2003), 38 R.F.L. (5th) 307, 174 O.A.C. 76, 66 O.R. (3d) 40, 228 D.L.R. (4th) 376 where the income of the payor was $800,000.00, that is, in the same range, he was required to pay table support and also to pay private school expenses.

  • [10]  In E. (C.R.H.) v. E. (F.G.), 2004 BCCA 297, annual hockey expenses of $2,400.00 were held not to be extraordinary based on the payor's income of $88,000.00 and the recipient's of $52,000.00.

  • [11]  Chambers , 2004 MBQB 239.

  • [12]  Chambers , ibid . at p. 10, following Cabot v . Mikkelson 2004 MBCA 107.

  • [13]  Bird v. Ritcey , 2004 NSSF 112, ( sub nom . Ritcey ) in which the Court did not allow the expense for a foreign university chosen by one parent unilaterally; although other cases have held that the expense being necessary and reasonable was allowed even though the support payor had no say in the child's schooling: Lalonde, [2005] W.D.F.L. 2970, [2005] W.D.F.L. 2968, [2005] W.D.F.L. 2985, [2005] W.D.F.L. 3007, [2005] W.D.F.L. 2995, [2005] W.D.F.L. 2992 (Ont S.C.J.).

  • [14]  J. (P.M.) v. J. (A.D.), 2003 BCCA 285 where the Court recognized the value of additional extracurricular activities for the children to compensate for their father's lack of involvement in their lives.

  • [15]  Chambers , supra , note 11, at p. 10.

  • [16]  Park v . Thompson, supra , note 7.

  • [17]  In Fong v. Charbonneau 2005 MBQB 92 Yard J., considered the annual expense of figure skating of over $11,000.00 for a 16 year old child outstripped the amount of basic child support being paid to her mother who earned $41,683.00 and received $879.60 from the father whose income was determined at $96,465.00. Notwithstanding this, His Lordship found, at p. 23 - 34 of the decision, that the expense qualified under subsection 7(1.1)(b), that the child had some talent (not necessarily required to be of "regional, provincial, national or world-class" calibre), that the activity did not detract from her best interest by affecting her schooling negatively, that she had long been involved in the activity, that physical activity of this nature by definition contributes to the health and wellbeing of children including teenagers, that the parents having separated when she was young there was no pattern of spending established, and that the expense was reasonable having regard to the parents' means. The case was well documented by the mother, which clearly impacted on the decision.

  • [18]  Changes in taxes affect a payor's ability to pay child support – they can either increase or decrease the ability to pay. Taxes have changed over the past several years. For example, in British Columbia , for a $100,000.00 gross annual income, the after-tax income was about $59,100.00 in 1997. In 2004, the after-tax income for the same $100,000.00 gross annual income is about $69,000.00. This corresponds to a monthly child support amount for one child of $761.00 in 1997 and of $906.00 under the new tables, a difference of $145.00. Using an example for Ontario , a payor who had a gross income of $80,000.00 in 1997, would have an after-tax income of $50,000.00 and would pay child support of $639.00 each month for one child. In 2004, that same payor with the same annual gross income would have an after-tax income of $56,000.00 and would pay child support amount of $719.00 per month for one child under the new tables. The difference in the child support amount paid in 1997 and that paid under the new tables is $80.00 per month. For that same province, a payor who has an annual gross income of $100,000.00 would have an after-tax income in 1997 of $59,700.00, and in 2004, an after-tax income of $67,500.00. The monthly child support amount for one child in 1997 was $773.00, while under the new tables, the amount is $877.00, a monthly difference of $104.00. (These figures were provided by the Department of Justice Canada ). The new amounts ensure that children continue to benefit from the financial means of parents after separation just as they would if the family was still together. The 2006 child support amounts represent about the same proportion of a payor's after-tax income as the 1997 child support amounts.

  • [19]  This threshold corresponds to the basic personal amount which is the amount considered necessary to provide for one's basic needs and the amount on which no income tax is paid.

  • [20]  It provides: For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

    • in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;
    • in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and
    • in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
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