Children Come First: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines - Volume 2

3. Overview of Provincial and Territorial Guidelines

GUIDELINES ACROSS CANADA

Since 1997, all the provinces and territories except Alberta have adopted child support guidelines in their laws. In Alberta, the Federal Child Support Guidelines have been implemented in practice for cases before the courts but have not been adopted in provincial law.[23] The provincial and territorial child support guidelines apply to separating parents who were never married, and to parents who are married and have separated but are not getting divorced.

Map of Canada, numbered in conjunction with provinces

Child Support Guidelines Across Canada

[ Description ]

  1. Yukon. Adopted FCSG with minor amendments on April 1, 2000. No designation.
  2. British Columbia. Adopted FCSG with minor amendments on April 14, 1998. No designation.
  3. Northwest Territories. Adopted FCSG with minor amendments on November 1, 1998. No designation.
  4. Alberta. No provincial Guidelines.
  5. Nunavut. Adopted FCSG with minor amendments on April 1, 1999. No designation.
  6. Manitoba. Adopted FCSG with minor amendments. Designation in effect since June 1, 1998.
  7. Saskatchewan. Adopted FCSG on May 1, 1997. No designation.
  8. Prince Edward Island. Adopted FCSG with minor amendments on November 27, 1997. Designation in effect since January 1, 1998. (B)
  9. Quebec. Adopted its own guidelines. Designation in effect since May 1, 1997.
  10. Ontario. Adopted FCSG with minor amendments on December 1, 1997. No designation.
  11. Newfoundland. Adopted FCSG with minor amendments on April 1, 1998. No designation.
  12. News Brunswick. Adopted FCSG with minor amendments. Designation in effect since May 1, 1998.
  13. Nova Scotia. Adopted FCSG with minor Amendments on August 31, 1998. No designation.
  1. Provincial guidelines adopted -- no designation.
  2. Provincial guidelines adopted -- designation granted. (provincial guidelines apply in divorce cases).
  3. No provincial guidelines.

The provinces and territories that have guidelines have adopted the Federal Child Support Guidelines with few or no changes. The one exception is Quebec, which has adopted different guidelines. This section of the report provides an overview of all provincial and territorial guidelines, and compares Quebec's guidelines to the federal ones. The Quebec Department of Justice has a report of its own, which has more information on the Quebec guidelines.[24]

Four provinces—Quebec, Prince Edward Island, New Brunswick, and Manitoba—received a designation for their guidelines.[25] This means that the provincial child support guidelines have provisions that differ from the Federal Child Support Guidelines. The designation allows those provisions to apply to all child support cases (even those that would otherwise be dealt with under the Divorce Act) when both parents live in the province.[26] When both parents do not live in the province, and they are getting divorced, the Federal Child Support Guidelines apply. 

The designation provides greater consistency between child support amounts ordered under provincial or territorial legislation and those ordered under the Divorce Act.

If a jurisdiction is not designated, the Federal Child Support Guidelines will apply to child support cases under the Divorce Act and the jurisdiction's own guidelines will apply to matters under provincial or territorial law.

PROVINCES AND TERRITORIES THAT HAVE ADOPTED THE FEDERAL CHILD SUPPORT GUIDELINES UNDER PROVINCIAL OR TERRITORIAL LAWS

SASKATCHEWAN

Saskatchewan amended its provincial legislation, in An Act to Amend The Family Maintenance Act, as well as the accompanying regulations, to bring its legislation into harmony with the Guidelines, effective May 1, 1997.

ONTARIO

On December 1, 1997, Ontario adopted provincial guidelines that mirror the federal ones without substantive changes, under Bill 128, An Act to Amend the Family Law Act, S.O. 1997, c. 20. Ontario law requires a court that makes or varies a child support order to do so in accordance with child support guidelines prescribed by regulations under the Family Law Act.

These changes parallel the federal reforms to the Divorce Act and the Federal Child Support Guidelines, with modifications necessary to reflect the operational and policy framework of the provincial Family Law Act. For example, the provincial guidelines use the term "parent" instead of "spouse," as the legislation will also apply to children of unmarried parents, who are not covered by the Divorce Act or the Federal Child Support Guidelines.

BRITISH COLUMBIA

British Columbia also elected to adopt the federal guidelines with minor alterations to harmonize the legislation with the provisions of the Family Relations Act. This means that the Guidelines are used to calculate support for children, not only of divorcing couples, but also of spouses who are separated, unmarried, or of the same sex.

The provincial legislation was amended under the Family Relations Amendment Act, 1997, S.B.C. 1997, c. 20, which came into force on April 14, 1998. The British Columbia Child Support Guideline Regulation specifies in paragraph 1(4)(b) that a parent served with an application for child support in the provincial court must comply either with the 30-day filing requirement found in subsection 21(2) of the federal guidelines or with a time limit designated by provincial court rules.

NEWFOUNDLAND AND LABRADOR

This province's guideline regulations, called the Child Support Guideline Regulations, Nfld. Reg. 40/98, were enacted under the Family Law Act. These regulations came into force on April 1, 1998, and mirror the federal system, with a few modifications. First, a person who has been served with an application for a child support order must file income information documentation within 10 days of being served, if he or she lives in the province. This period is extended to 30 days if the respondent resides in another province or in the United States, and to 60 days for those living elsewhere. This contrasts somewhat with the federal Guidelines, which allow any respondent living in Canada or the U.S. (including the same province) 30 days to file, and 60 days if the respondent resides elsewhere.

The Newfoundland and Labrador legislation ensures that a child support order has priority over spousal support variation applications. In addition, the words "orthotic and other similar devices" have been added to section 7, which deals with special or extraordinary expenses.

The most significant departure from the federal scheme requires both spouses to file financial information, even if the support recipient's income is not needed to calculate the amount of the support payable.

NOVA SCOTIA

Nova Scotia has enacted the Nova Scotia Child Maintenance Guidelines, as regulations under the Family Maintenance Act, and these became effective on August 31, 1998. Schedules I, II, and III to the Federal Child Support Guidelines were adopted. In most respects, the Nova Scotia guidelines reflect the federal model, with minor variations to account for provincial legislation and Rules of Court. The basic rules for calculating child support under the Nova Scotia guidelines are the same, as are the table amounts and tests for calculating special expenses and undue hardship.

The Nova Scotia guidelines contain substantially the same provisions as the federal Guidelines with respect to children at the age of majority or over, incomes over $150,000, persons in the place of a parent, medical and dental insurance, and split and shared custody. Wording changes appear throughout to ensure that the provincial guidelines accord with the requirements of the Family Maintenance Act; for example, reference is made to "maintenance" in place of "support"; "parent" replaces "spouse"; and the definition of "child" in paragraph 2(1)(b) means a dependent child as defined by the Family Maintenance Act.

The Nova Scotia guidelines do not refer to recalculations of child support orders by a provincial child support service, as this type of service is not yet in place in the province. Under  paragraph 2(4)(c), the provincial guidelines apply to written child maintenance agreements that are being registered.

The wording of subsection 7(1) and paragraph 10(2)(a) has changed because not all parents to whom the provincial guidelines apply will have cohabited.

The provincial guidelines also contain enhanced filing requirements. The new paragraph 21(1)(h) captures income information from sources such as employment insurance, social assistance, pension, workers' compensation, disability benefits, and similar sources. As well, the province has modified the federal guidelines' time frames for filing income information, doing so in subsections 21(2), (3), and (4). These modifications ensure their consistency with provincial civil procedure rules.

Finally, in sections 22 and 24 and subsection 25(7), the province has altered slightly the remedies for failure to comply. These remedies now include the additional provisions contained in the Family Maintenance Act, such as the ability of a court or a court officer to require production of income information under section 29 of the Act. The contempt provisions in paragraphs 25(7)(a) and (b) have also been reworded to reflect the context of the Family Court.

NORTHWEST TERRITORIES

The guidelines that the Northwest Territories adopted on November 1, 1998, under the Children's Law Act, S.N.W.T. 1997, c. 14, are essentially the same as the federal Guidelines. Under territorial law, a court making or varying a child support order must now apply the Federal Child Support Guidelines.

The territorial legislation differs from the federal Guidelines in a few minor respects. For example, all references to the term "spouse" have been replaced with either "parent" or "person," as applicable, and the definitions of "child" and "parent" are found in the Act, not in the territorial guidelines.

The Northwest Territories has also addressed the issue of multiple payers, in cases where the applicant is not a parent of the child for whom support is sought. Section 5 of the Act provides that the territorial guidelines be used to determine the amount of child support payable by each parent. For example, if a relative has custody of the child and is seeking support from the mother and father, the support from each parent is based on the Guidelines.

Sections 11 and 12 of the federal Guidelines, which deal respectively with the form of child support payments and the power of the court to order security of the payments, are not included in the territorial guidelines because similar provisions exist in the Children's Law Act.

Subsection 21(7) of the territorial guidelines refers to situations where the Minister responsible for the Social Assistance Act is a party to an application for a child support order. In those cases, section 21 (which deals with the obligation to provide income information) does not apply to the Minister, but to the parent who has received, is receiving, or will receive social assistance. Section 26 deals with the continuing obligation to provide income information, and subsection 26(9) defines the terms "assignee" and "payee," as they apply in section 26.

No mention is made of the recalculation of child support orders by a territorial child support service, as described in section 26 of the federal guidelines.

NUNAVUT

On April 1, 1999, the new territory of Nunavut grandfathered all Northwest Territories legislation. As such, the Nunavut Child Support Guidelines are identical to the Northwest Territories' guidelines.

YUKON

Yukon adopted the federal guidelines on April 1, 2000, in the Yukon Child Support Guidelines, which were enacted as regulations under the Yukon Family Property and Support Act, R.S.Y. 1986, c. 63, as amended by Statutes of the Yukon 1998, c. 8. 

There are few substantive changes from the federal guidelines, although there are some differences in the wording of certain sections. For example, the term "parent" is used throughout the legislation in place of "spouse", which is found in the federal guidelines.

More significantly, the Yukon definition of "child" specifically includes a child who is treated by a parent as part of the family, except in foster care situations. The federal guidelines define a child more narrowly as a child of the marriage; that is, a child of two spouses or former spouses.

Also, while the Yukon definition of "table" mostly incorporates the federal definition, it does include the option provided for in subsection 3(3) of the federal guidelines. This option allows the court to apply the guidelines for a given province (or territory, in this case), where it is satisfied that the paying parent will reside in that jurisdiction in the near future.

The Yukon guidelines omit provisions dealing with the Income Tax Act (subsection 2(2) of the federal guidelines), application of the guidelines (subsection 2(4) of the federal guidelines), recalculations (subsection 2(5) of the federal guidelines), form of payment (section 11 of the federal guidelines), and security (section 12 of the federal guidelines).

Unlike subsection 7(1) of the federal guidelines, the Yukon guidelines do not specify that only parents of the child may have requests for special or extraordinary expenses. In Yukon, third parties may also apply for them. In Yukon, subsection 7(1) also differs from its federal counterpart in that Yukon courts may, but are not obliged to, consider pre- or post-separation spending patterns of the parents for their children. This consideration is mandatory under the federal scheme.

Yukon also treats undue hardship differently. In Yukon, third parties as well as spouses may apply for undue hardship. In addition, under paragraph 10(2)(a), courts may consider unusually high debts, even if they were incurred after separation. Subparagraph 10(2)(d)(i) stipulates that undue hardship may occur when a parent has a legal duty to support any child, not just a child of the marriage, as indicated in the federal guidelines.

Finally in subparagraph 10(2)(d)(ii), undue hardship may arise where a parent must support a child who is at least the age of majority but who is unable to obtain the necessaries of life, as long as "that child is not the child of the parent against whom the order for child support is sought," a measure not included in the federal guidelines. A similar provision is found in paragraph 10(2)(e), regarding the support of a child at or under the age of majority or enrolled in school full time.

The wording of paragraph 12(a) of the Yukon guidelines implies a change in circumstances is only considered if it is a change in financial circumstances affecting the support of a child. By contrast, under paragraph 14(a) of the federal guidelines any change affecting a child support order or a provision of the order is considered a change of circumstances.

The Yukon guidelines differ slightly from the federal scheme in the provisions relating to patterns of income. For example, the court must be satisfied that the amount of income in the "Total Income" box of the T1 form is the amount the paying parent is likely to receive in the current year. The Yukon guidelines (section 15) do not refer to non-recurring losses as the federal guidelines do in subsection 17(2).

Paragraph 17(1)(a) of the Yukon guidelines permits the court to impute income to a paying parent, unless that parent is unemployed or underemployed because of the child's needs. The corresponding provision in paragraph 19(1)(a) of the federal guidelines restricts imputing income to a parent who is unemployed or underemployed because of the needs of a child of the marriage or any child under the age of majority or the reasonable education or health needs of the parent. In addition, the Yukon guidelines add in paragraph 17(1)(h) that income can be imputed if dividends, capital gains, or other sources of income are exempt from tax, a feature omitted from the federal guidelines.

Under paragraphs 19(1)(h) and (i) of the Yukon guidelines, the parent applying for support must include a sworn statement of net worth, in contrast to the federal requirements.

The Yukon guidelines also vary somewhat from the federal guidelines in the way they treat the penalties for failing to comply with a court order and the way they treat the continuing obligation to provide income information.

PROVINCES THAT HAVE RECEIVED A DESIGNATION

MANITOBA

Manitoba elected to adopt the federal guidelines with modifications. Manitoba's guidelines comprise amendments to The Family Maintenance Act, C.C.S.M. c. F20, together with the Child Support Guidelines Regulation, Reg. 58/98. These guidelines came into effect on June 1, 1998. Here are the differences between the federal and Manitoba guidelines.

  1. A non-custodial parent cannot apply for special expenses under the Manitoba Child Support Guidelines Regulation. An expense under paragraph 7(1)(b) of the federal guidelines, which refers to the portion of medical and dental insurance premiums attributable to the child, is not a special expense under the Manitoba guidelines, as this is an expense that the non-custodial parent would claim. Subsection 7(4) of the Manitoba guidelines stipulates instead that this amount be taken into account when calculating health-related expenses.
  2. Under the Manitoba guidelines, special expenses can be shared only if a parent has more income than the threshold below which no amount of child support is payable.
  3. Manitoba's financial disclosure and information provisions differ somewhat from those in the federal guidelines. Manitoba requires parents to provide financial information to the other parent on request, rather than requiring a court application for support. (This approach is consistent with the financial disclosure provisions in the Family Maintenance Act.) The Manitoba provisions enable parents to get the financial information they need to decide whether to make the support application in the first place. Manitoba's guidelines do not require parties to file as much financial disclosure material with the court as do the federal guidelines. In Manitoba, parties are permitted to file a sworn financial statement and three years of Canada Customs and Revenue Agency income and deduction computer printouts with their application. The Manitoba guidelines give parents the right to request more extensive financial disclosure material and the court can order that this material be produced.

PRINCE EDWARD ISLAND

In Prince Edward Island, the Family Law Act was amended by An Act to Amend the Family Law Act (No. 2), S.P.E.I. 1997, c. 16, which came into effect on November 27, 1997. The province received its designation on January 1, 1998. By regulation, the province enacted child support guidelines that differ from the federal regime in two key respects.

First, the regulations include a new subsection that departs from the federal guidelines' filing requirements:

(4.1) Despite subsections (1) to (4), if both spouses file with the court a sworn document in which they attest that they have reviewed the other spouse's income information referred to in this section and both agree on the income of that spouse, only the documents referred to in this section for the most recent taxation year need be filed unless the court orders that the documents for the three most recent taxation years be filed if the court considers that the income information does not fairly reflect the financial situation of the spouse.

The second major variation can be found in the tables themselves. Prince Edward Island has chosen to calibrate the tables so that they look and read differently from the federal tables for that province. Paying parents are required to pay more child support under the provincial tables than would be required of them under the federal legislation. For example, a paying parent with one child, earning $30,000 per annum in Prince Edward Island, whose former spouse also lives in that province, would have to pay $297 per month in child support under the provincial table. If the receiving parent lived in another province, the federal tables would apply, and the paying parent would have to pay $259 per month to support the child.

NEW BRUNSWICK

An Act to Amend the Family Services Act and the Child Support Guidelines—Family Services Act comprise New Brunswick's child support guidelines, which came into force on May 1, 1998. Essentially, New Brunswick's guidelines duplicate the federal regime with two notable exceptions.

First, a spouse must produce income information documents within 20 days of notice, 10 fewer days than under the federal guidelines. This departure accords with the New Brunswick Rules of Court and will speed up the production and disclosure stage of the separation and divorce process.

The second variation is that spouses may consent to file with the court only one year of income information, as opposed to the three years of income information required under the federal statute. This amendment to the federal guidelines regime means that when parties agree on income, they don't need to file as many documents.

QUEBEC

Quebec has adopted its own system for determining child support. In the case of a divorce, the Quebec rules are deemed to be the "applicable guidelines" when both parents reside in the province of Quebec.[27] They also apply to support ordered under Quebec's Civil Code. Quebec's rules are similar to the Federal Child Support Guidelines in certain respects, while significantly different in others.

The Quebec system for determining child support may be briefly described as a six-stage process.

The first stage determines the basic parental contribution, based on the terms and conditions set out in the regulation[28] and using the form and table that indicate the exact amounts for each level of disposable income. The table uses a formula that includes the parents' disposable income, the number of children involved. As in the federal guidelines, this basic parental contribution is deemed to meet the needs of the child and the ability of the parents to pay.

The second stage calculates the potential impact of the arrangement of the custody and access rights on the amount of the basic parental contribution. In the case of shared custody or visiting rights, and prolonged outing rights, the impact of the custody time is automatic. A visiting and prolonged outing right (representing 20 percent to 40 percent of the time) will slightly affect the basic parental contribution, whereas shared custody (40 percent or more of the time) will have a considerable impact.

The third stage is optional and takes into account certain potential additional expenses, namely child care expenses, post-secondary education expenses, and such special expenses as medical expenses, expenses for primary or secondary studies or for any other educational program, and expenses related to extracurricular activities. If the additional or special expenses are found to be eligible, they will be added, in the same proportion as that of the respective incomes, to the basic parental contribution to constitute the amount of the support payable to the receiving parent.

The fourth stage accounts for any potential "undue hardship" that, depending on the discretion of the court, may increase or reduce the support payable.

The fifth stage allows the court, at its discretion, to consider parents' assets and the resources available to the child personally to determine whether to reduce or increase the support calculated in the earlier stages.

The sixth and final stage verifies whether the result obtained exceeds 50 percent of the disposable income of the paying parent. If it exceeds this maximum, the court can adjust the amount accordingly, but it can also decline to do so if it gives reasons. Therefore, the court could decide, in exceptional cases, particularly when a paying parent has considerable assets, to order the paying parent to pay support greater than one-half of his or her disposable income.

SIMILARITIES

Fundamentally, the federal and Quebec systems for determining child support have the same motives, guiding principles, and objectives. In fact, both the Quebec and federal governments have reformed their systems because of the unpredictability in support orders, the differences in the amounts ordered, and the inadequacy of child support. Both governments wanted to base child support on two principles: the joint financial responsibility of the parents and the sharing of responsibility in proportion to the resources available. Both systems promote negotiated settlements of disputes and both give priority to child support over support that one spouse might owe the other or over any other debt.

The federal and Quebec rules reflect the search for balance between, on the one hand, having predictable and uniform orders and, on the other hand, having enough flexibility in the system to deal with special cases. Both systems reach this balance in several ways.

  1. Both systems start with a concept of disposable income that makes it possible in the vast majority of cases to determine a contribution amount using the pre-established tables (depending on the number of children). This concept acknowledges that the parents must have a minimum income available to them.
  2. Both systems make it possible to "increase" this amount later to include certain special expenses.
  3. Both systems authorize the court to depart from the formula when a party experiences undue hardship.
  4. Both systems allow the court to exercise discretion and even to completely depart from the guidelines. In these cases, the court can go back to the classic test for assessing the means and needs of the parties.

Like the Quebec guidelines, the federal guidelines provide a mandatory method of determining child support. But both sets of rules do permit exceptions in specific circumstances. Both sets of rules have similar provisions that allow judicial discretion in these situations:

  1. when children have reached the age of majority,
  2. when there are additional expenses (which are defined restrictively),
  3. when there is undue hardship (such as indebtedness for family reasons, or a high cost to exercise the right of access to the children being supported, or the burden of other support obligations), and
  4. when there are high incomes.

DIFFERENCES

There are several differences between the two systems, some of which are significant. They are essentially related to the way in which parents' incomes are assessed, the impact of child custody time, the test of undue hardship, the definition of some additional expenses, and the indexation of child support amounts.

INCOME TAKEN INTO ACCOUNT

Both the Quebec and the federal systems are based on the principle that children must be able to benefit from both of their parents' incomes; this principle is stipulated under subsection 26.1(2) of the Divorce Act. However, the most significant difference between the systems is that the tables in the Federal Child Support Guidelines require the paying parent's income only. The federal guidelines assume that the receiving parent has custody and spends a proportionate part of his or her income on the child.

However, the Quebec system, contrary to the federal guidelines, expressly takes into account the income of both parents. It applies proportional arithmetic distribution, so that income generated by the receiving parent will affect support payments, sometimes significantly. Under the federal guidelines, this income has no impact on the basic amount, set by the tables.

While this difference is significant, it is not as dramatic as it first appears. For example, under the federal guidelines, the principle (of considering the paying parent's income alone) only applies to amounts specified in the tables. However, when it comes to special or extraordinary costs, both of the parents' incomes are considered. Also, the income of the receiving parent must be considered in cases of undue hardship or shared custody, when there is income above $150,000, and when the child has reached the age of majority.

Furthermore, although Quebec has always required that the incomes of both parents be taken into account, in many cases the income of the custodial parent is deemed insufficient to be considered. Indeed, in half the cases covered by the Report of the Follow-Up Committee on the Quebec Model for the Determination of Child Support Payments[29] (also known as the Follow-Up Committee Report), a sole parent assumed the full amount of support payments for the child because the other parent did not have any "disposable" income. In other words, for socio-economic reasons, only the paying parent's income is considered in many cases.

The Quebec system also differs in that it allows the courts to consider, at their discretion, the income and assets of minor children themselves in determining parental child support,[30] something not allowed under the federal guidelines.[31]

The two systems define income differently when support payments are calculated. For instance, different sources of income may be considered, such as capital gains[32] or student loans and bursaries.[33] Beyond these distinctions, the concept of income under both systems is very broad. Both systems also give courts large discretionary powers in cases involving fluctuating, unstable, or indefinite income. In all such cases, the courts have (and use) these powers to ensure that children can actually benefit from real or probable income.

IMPACT OF CUSTODY TIME

The second major difference is that in some cases in Quebec, custody time will automatically affect the basic child support contribution. Therefore, when the non-custodial parent exercises a "prolonged" access right (representing between 20 percent and 40 percent of custody time), the support payment must be readjusted. The impact will be real but mitigated, since only the time exceeding 20 percent is considered. The Follow-Up Committee Report confirms that, in practice, this provision has little real financial impact.[34]

In shared custody cases, where both parents have at least 40 percent of custody time of all children, custody time significantly affects contributions, since the basic support contribution (which is prorated to income) will be reduced in proportion to the paying parent's custody time. However, the type of custody arrangement doesn't affect additional expenses (discussed above), which are admitted under somewhat less restrictive conditions in Quebec than under the federal guidelines.

Quebec case law shows that Quebec courts have a method, similar to that used in other provinces, for calculating time physically spent with the child. All Canadian courts have decided to count as custody time any time when a child is under a parent's authority, even if he or she is not physically present with a parent. For example, time spent at day care or school is counted. Furthermore, the courts have decided to count real time-even though, for example, it might represent only half a day. The determining factor is the financial impact of time spent with the child. Therefore, in terms of calculating time spent in the child's presence, courts apply both systems in similar ways.[35]

However, the difference between the systems lies in the effects of shared custody. Under the Quebec system, the effect is automatic. Shared custody necessarily implies that both parents must contribute to the child's expenses in proportion to their disposable incomes when the child is in their custody. But infrequent expenses, such as clothing, pose practical difficulties, which have led the courts to arbitrate and specify the obligations of each parent for these expenses.

The Follow-Up Committee has consequently suggested that the general public be better informed of the actual consequences of shared custody.[36] Under the federal guidelines, however, shared custody opens the doors to judicial discretion. In other words, the courts must decide how far shared custody will affect support payments. Moreover, precedents have been established that shared custody does not automatically reduce child support payments; such reductions happen on a case-by-case basis.[37]

UNDUE HARDSHIP

The third significant difference involves undue hardship. The specific conditions of each type of hardship may vary from one system to another. For instance, hardship may result from exercising access rights. In Quebec, the courts are not required to first assess the "excessive" nature of the expense, as they are under the federal guidelines. Beyond cases in which access rights could be jeopardized due to unusually high expenses, Quebec courts do not generally consider these expenses to be undue hardship.

Both methods of assessing undue hardship are significantly differentiated by another factor.  The federal guidelines provide a comparison of household standards of living. Under the Quebec Rules, both parents, even the one whose standard of living is greater, may claim undue hardship. Consequently, case law shows that a paying parent in Quebec can apply to reduce support payments because of the high cost of exercising visiting rights.

Again, the distinction here is less dramatic than it first appears. Precedents set in Quebec and in the other provinces have somewhat restricted the way undue hardship can be applied.[38] Under both systems, courts have ruled that having a second family or additional support payments does not automatically reduce child support, and that the mere fact that one parent earns less than the other does not necessarily constitute undue hardship.

On the other hand, even in Quebec, the courts are somewhat inclined to compare incomes, albeit somewhat informally.[39] This tendency is quite understandable since they must determine whether hardship is "undue," a task that implies assessing income. The Quebec Court of Appeal itself emphasized that "referring to the overall circumstances and taking the value of a parent's assets into account enables us to consider the discrepancy between the parents' respective financial means."[40]

Therefore, the courts may compare the standards of living of the parents without being obliged to do so, as is the case under the federal guidelines. In fact, the Follow-Up Committee formally rejected the idea of introducing a compulsory standard-of-living comparison test, saying that such a test would be too great a burden for some parents.[41] However, it did note that in almost half of the cases involving undue hardship, the courts took into account the income of other household members.

ADDITIONAL EXPENSES

Sometimes, additional expenses allow the courts to exceed the amounts specified in the tables. Here, both systems apply the test of necessity of the expenses, given the child's needs, and of reasonableness, given the parents' respective resources. Both of these factors must be established since additional expenses are an exception to the rule  (under both systems) that the amounts in the tables adequately fulfill the child's needs.[42]

The federal guidelines also consider the family's spending pattern before the parents separated. The Quebec rules do not mention this expressly, although Quebec case law regularly refers to the household standard of living before separation.[43] Furthermore, the federal guidelines require that expenses related to education (other than post-secondary education) and extra-curricular activities be extraordinary to be considered as an additional expense. Precedents involving both the federal guidelines and the Quebec rules have already established that these expenses, such as those related to extracurricular activities, will only be taken into account if the activity itself is considered exceptional or when it costs significantly more than what families of similar economic backgrounds usually pay. Therefore, despite differences in the wording of the texts, the courts seem to be applying a test that refers to each household's specific financial situation.[44]

INDEXATION

Under Civil Code, amounts specified in support orders are automatically indexed on January 1 of each year, unless otherwise specified by the court. Therefore, in Quebec, the amounts specified in the table appended to the rules are indexed annually. [45] The federal guidelines do not index amounts in the tables, but paying parents must periodically provide information regarding income, which makes it easier to update amounts when receiving parents ask for changes to child support orders.

It is hard to tell whether amounts under the federal tables are somewhat higher than the provincial amounts. The federal guidelines assume that the custodial parent will automatically contribute in proportion to his or her financial ability, while the Quebec system expressly considers the income of both parents. In Quebec, amounts will be higher for lower income parents, but will be lower for higher income parents.[46]

Date modified: