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Compliance with the Child Support Guidelines – Is it Optional?

8 minute read

Navigating legal and financial issues that impact your life when your family dynamic changes can be challenging. Subscribe to FamilyMatters, our Lerners Family Law blog series, which provides insightful information and helps you determine your next steps.

The Federal Child Support Guidelines, pronounced under the Divorce Act, and Provincial Child Support Guidelines, pronounced under relevant Provincial Family Law legislation, came into effect on April 1, 1997, nearly 26 years ago.  In spite of that, there still seems to be a lack of awareness of the fact that the Child Support Guidelines regulate and govern child support and that compliance with the Guidelines is required.  The ability of parents to make their own arrangements with respect to child support was severely circumscribed by the enactment of the Child Support Guidelines and yet there are still parents who make their own deals with respect to child support, that fall well outside the dictates of the Child Support Guidelines, and which cannot be justified as special provisions made for the benefit of the child, such that it would be inequitable to enforce the Guidelines in the face of those special provisions.

The danger for a payor parent is that somewhere along the line, such as when a divorce is sought, where the parents were legally married, or where the parties seek to formalise their separation and seek legal advice, is the discovery that child support has accrued under the Child Support Guidelines creating, in some cases, a significant amount of arrears.

The Supreme Court of Canada has made it clear that children, while they remain legally dependent children, are entitled to child support from birth from both parents and that entitlement survives a separation of the parents.  The only issue after the separation of the parents is which parent pays child support to the other parent, and the amount of child support to be paid by that parent.

The courts have also made it clear that the ability of parents to waive child support, essentially doesn’t exist, as child support is the right of the child and that is something that neither parent has the ability to waive or bargain with, except in limited circumstances where parents have made special provisions which a court can be persuaded benefit the child or the children, and that in such case strict application of the Child Support Guidelines would be inequitable. Parents are well advised to seek advice about child support, and compliance with the Child Support Guidelines, to avoid facing at a later point in time, a significant “bill” for unpaid child support.

A recent Supreme Court of Canada decision also makes it clear that a calling to account with respect to one’s child support obligation, and unpaid child support, can occur many years after the obligation to pay child support under the Child Support Guidelines arose, and can occur even after the subject child is no longer entitled to child support having aged out of being a dependent child.  The Supreme Court of Canada has made it clear that laxity by the parent who should have been receiving child support, in claiming it and collecting it, will not necessarily save the parent who should have been paying child support based on their income.  The Supreme Court of Canada has also made it clear that the support payor should see to it that child support being paid is commensurate with what is prescribed by the Guidelines based on their income from time to time.

A payor parent who has not been paying the amount required by the Guidelines, even though paying an amount deemed acceptable by the other parent, or deemed acceptable at one point in time with no follow up to see if the amount should increase, may well find a court rejecting the defence of “I did what the other parent and I agreed to” or “No one asked me for updated information about my income”.

If the failure to adhere to the Guidelines has gone on for some time and the non-compliant parent has paid what was thought to be appropriate by the other parent, and the other parent has not specifically requested update income disclosure, the court may have some sympathy as to how far back it will go in recalculating the child support to establish the arrears of child support that accrued under the Child Support Guidelines.  There was more sympathy for that situation when the Guidelines were new but we are now past a quarter century of the Guidelines governing child support and recent case law suggests that sympathy for non-compliance with the Guidelines from the time that the Child Support Guidelines became applicable to the family situation, is on the wane.

Parents should also be careful about making adjustments to the parenting time schedule without regard to the impact of those adjustments, if any, on the application of the Child Support Guidelines.  Parents may move from a shared parenting regime, which would be governed by s. 9 of the Child Support Guidelines, to a parenting time regime that brings into play s. 3 of the Child Support Guidelines because under the new parenting arrangement one parent has fallen below the parenting time over the course of the year that makes s. 9 of the Child Support Guidelines applicable.  Parents will either continue with the child support already being paid without regard to whether or not it is still appropriate given the change in the parenting time schedule. At a later point in time the parent who didn’t get the prescribed amount of child support that should have been paid, may suddenly take action to recover accumulated arrears even though the other parent was acting in good faith in paying the amount that was acceptable at one point in time, and appeared to be still acceptable to the other parent even after the change in the parenting time.

The change in the payor parent’s child support obligation if the parenting time rearrangement invokes s. 3 rather than s.9 can be substantial and arrears can accumulate very quickly to the surprise of the payor parent, particularly where the payor parent, and often the receiving parent, either didn’t turn the minds to the impact of the parenting time change on child support under the Child Support Guidelines, or determined that they could agree to continue with the existing child support arrangement without regard to the application of the Child Support Guidelines. That is a risky move on the part of the parent with the obligation to pay child support.

Clients should be advised that while it is a good thing if they can work with the other parent cooperatively to deal with parenting issues, focussing on the best interests of the children, without the intervention of the court or lawyers, at the same time, when they are making adjustments to parenting time, they should give consideration to the impact of those adjustments on child support under the Child Support Guidelines. Payor parents should also be cautioned that they should seek to keep their child support payments in line with their income to avoid being stuck with a large arrears bill down the road.

The writer is aware of a recent case where parents, in recognition of the need for a change to the parenting schedule because of a change in the distance between their respective residences, made a new parenting schedule which focussed on what worked best for the children, but it moved the parenting schedule from s. 9 to s.3 of the Child Support Guidelines.  The increase in the monthly child support thus occasioned was well over $1,000.00 per month.  It is clear that the payor parent, at least, while focussed on doing what is right by the children, was oblivious to the impact the parenting time change would have on the obligation to pay child support.  The parents agreed at least tacitly, between themselves to continue with the amount that was being paid during the shared parenting regime but now the recipient parent, having received advice from counsel, is going after the s. 3 support from the time that the parenting schedule got shifted to a s. 3 situation.  A defence based on the other parent agreeing to continue with the existing amount of support will likely fail given the case law, including from the Supreme Court of Canada, which has emphasised that child support is the right of the child, and the right of parents to tinker with that right is extremely limited.

Even after 26 years, it still does not seem to be well understood by a significant segment of the parenting public that compliance with the Child Support Guidelines is not optional.

At Lerners, we understand the delicate nature of domestic and family-related legal decisions and appreciate the emotional toll they can have on those involved. Our team, located in Southwestern Ontario and Toronto, will work tirelessly to protect your interests and achieve the best possible outcome to get the closure you deserve. With a successful track record that includes some of Canada's most complex family law cases, we dedicate ourselves to achieving results and helping you move forward with your life. Contact us today to see how we can help.

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William R. Clayton

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