FAQ: Child Support

Find out the answers to frequently asked questions ("FAQs") with regard to family law and other legal issues.

When can a payor spouse pay non-Federal Child Support Guidelines child support based on undue hardship?

Almost all spouses who owe child support will pay child support according to the Federal Child Support Guidelines (“the Guidelines”) as opposed what we term ‘non-Federal Child Support Guidelines child support’ in this article.  However, in certain situations, a court will permit a payor spouse to depart from the Guidelines child support amount owed based on a successful undue hardship claim.

The Guidelines states in section 10(1): “On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.”

The test for undue hardship has two parts per D(S) v M(J) 2013 CarswellOnt 15251.  First, the claimant must prove undue hardship with reference to section 10(2) of the Guidelines. Section 10(2) outlines the circumstances that may cause a spouse or child to suffer undue hardship:

1. the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

2. the spouse has unusually high expenses in relation to exercising access to a child;

3. the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

4. the spouse has a legal duty to support a child, other than a child of the marriage, who is under the age of majority, or the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and,

5. the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

The second step of the test is that the claimant must show that the standard of living in their household is lower than the standard of living in the household of the other party per section 10(3) of the Guidelines.  According to section 10(3) “Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.”  A standard of living test can be done using Schedule II of the Guidelines.

If the claimant spouse is successful in proving their undue hardship claim, a judge will then make an order for an appropriate reduction in Guidelines child support (i.e. non-Federal Child Support Guidelines child support).

If you have questions about child support or non-Federal Child Support Guidelines child support, contact the experienced divorce lawyers at Krol & Krol for a consultation at 905.707.3370.

May a payor reduce their child support obligation because they are living in a location with a high cost of living and the children are living in a location with a lower cost of living?

A payor parent may not reduce their child support owed because they are living in a location with a high cost of living.

Section 19 of the Child Support Guidelines outlines the situations in which a court may impute income to a spouse.  Section 19(c) of the Child Support Guidelines states that a court may impute income to a spouse if “the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada”. McGouran v Connelly, 2006 CanLII 7668 (ONCA) has held that section 19 of the Child Support Guidelines allows a court to impute more income to a payor spouse, but not to impute less.  Furthermore, section 19(c) applies only to spouses who live in countries with income tax rates significantly lower than those in Canada.  It does not apply to situations where a spouse lives in a country with higher cost of living than that in Canada.

Additionally, section 20 of the Child Support Guidelines states that “Subject to subsection (2), where a spouse is a non-resident of Canada, the spouse’s annual income is determined as though the spouse were a resident of Canada.”

To learn more about child support, contact Krol & Krol at 905.707.3370.

Are annuities included in calculating child support?

In Tookenay v. Laframboise, 2015 ONSC 2898 a husband and a wife had separated after a seven year marriage. They had two young children, being 8 and 4 years old at trial in this case.

The following issue came before Justice Newton on the issue of child support – When determining the father’s child support obligation, should an annuity he receives from a personal injury claim (settled when he was 2 years old) be included in determining his income for child support purposes?

The father’s position was that the annuity should not be included in his income because it was intended to repair the damage he had suffered from an accident.

Justice Newton found that the monies used from the settlement for ordinary expenses ought to be included as income. However, monies from the settlement, which were used for medical expenses or rehabilitation expenses should not be imputed to the father as income. Justice Newton ultimately finds that half of the monthly annuity payments were income.

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Imputation of Income – Reasonable Efforts

Child support and spousal support obligations are a function of the payor’s income. Given this, some payors attempt to conceal or undervalue the income he/she earns.

In those circumstances, the recipient of support may choose to bring a motion before the Court with respect to the imputation of income. In that case, the question is whether the payor is capable of earning more money and whether the payor is purposely under-earning with the intent to reduce their support obligations.

However, in a situation where the payor of support has not been in the workforce for many years and has, thus, made no reasonable efforts to secure employment, can a Judge rule in his/her favor with respect to the issue of imputation of income?

In the case of Toscano v. Toscano, 2015 ONSC 487, Justice Blishen dealt with similar circumstances and rules as follows:

“Ms. Toscano was 46 years old at the time of trial, is in good health and has a Business Administration diploma. She had work experience both before marrying Mr. Toscano and with Talos Homes during the marriage. I recognize that Ms. Toscano has been out of the work force entirely for at least 13 years, and that her education and work experience continues to decrease each year she remains inactive. However, Ms. Toscano has presented no evidence that she has made any effort to obtain employment or upgrade her business administration skills in order to present a plan for her own support. Given that both children reside with Mr. Toscano, I find it reasonable that Ms. Toscano make all reasonable attempts to obtain employment perhaps in conjunction with re-training. I will impute income of $40,000 and order Ms. Toscano to pay $579 per month in child support for the children pursuant to the FCSG.”

To learn more about imputation of income as well as the services provided by Krol & Krol, call 905.707.3370 today.


Are gifts included in income for support purposes?

In order to determine the quantum of child support for a payor in Ontario, one must refer to the Child Support Guidelines.

The case of Horowitz v. Nightingale, 2015 ONSC 190 referred to the Ontario Court of Appeal decision in Bak v. Dobell with respect to whether gifts should be included in income and whether the recipient of the gift should be imputed income.

In Bak v. Dobell, the Court of Appeal reasoned that gifts were not to be included in income. However, the Court did note that certain extraordinary gifts may call for the imputation of income. The Court stated as follows:

“Since the legislature did not include gifts within the ambit of imputed income, it can be presumed, in the normal course, that the legislature did not intend the receipt of gifts to be ‘appropriate circumstances’ in which to impute income. For this reason, usual gifts such as those given to mark a special occasion are not included as income  . . .

Although it seems the legislature intentionally did not include the receipt of gifts given in the normal course in presumptive income, or as an example of an appropriate circumstances under s. 19(1), a court will consider whether the circumstances surrounding the particular gift are so unusual that they constitute an “appropriate circumstance” in which to impute income.”

To learn more about gifts and imputing income as well as the services provided by Krol & Krol, call 905.707.3370 today.

Can I request that my child support arrears be rescinded?

When a spouse brings a motion before the Court to rescind child support arrears, the Court will analyze many factors in its determination as to whether the support payor should be relieved of his child support arrears.

The Court will generally focus its attention on whether the previous order that compelled the payor to provide child support at a specific quantum was unjust or too burdensome based on the payor’s circumstances at the time of the judgment.

Justice Sherr in Baxter v. Beharry, 2015 ONCJ 10 stated that in cases where income was imputed to the payor spouse, a motion to rescind child support arrears could lead to problems associated with res judicata.

“It is well settled law that, if income is imputed, then the issue will generally be res judicata on a motion to vary or change support. See: Bemrose v. Fetter, 2007 42 R.F.L. (6th) 13. Although the court always has discretion with respect to the issue of res judicata and can consider fraud, fresh evidence, additional disclosure or issues of fairness, the principle of res judicata provides that generally, a matter cannot be re-litigated once it has been determined on its merits.”

To learn more about child support arrears as well as the services provided by Krol & Krol, call 905.707.3370 today.

Tillmanns v. Tillmanns – Imputation of Income

Tillmanns v. Tillmanns, 2014 ONSC 6773 deals with the concept of imputing income.

If a party to a matrimonial dispute earns less money than what s/he is capable of earning, a court has the discretion to impute income to that spouse.

Section 19(1) of the Child Support Guidelines permits the court to impute income as follows:

The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a)     the parent or spouse is intentionally underemployed or unemployed, other than where the under- employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse …

(b)     the parent or spouse is exempt from paying federal or provincial income tax;

(c)     the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d)     it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(e)     the parent’s or spouse’s property is not reasonably utilized to generate income;

(f)     the parent or spouse has failed to provide income information when under a legal obligation to do so;

(g)     the parent or spouse unreasonably deducts expenses from income;

(h)     the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i)     the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

In Tillmanns, Justice Pazaratz explains the common theme that courts review in cases dealing with the imputation and attribution of income:

“All of these principles have a common theme: reasonableness. Parents are required to act responsibly when making financial decisions that may affect the level of child support available. They must not arrange their financial affairs so as to prefer their own interests over those of the children. Stewart (supra)”

In light of the above, in Tillmanns the Court ruled that the father’s decision to go back to school once he has lost his job/career was reasonable. The decision to take a break from earning a livelihood by going back to school and creating a better future for himself and his children should not be punished by attributing more income to his current financial statement.

To learn more about imputing income, call 905.707.3370 today.

Is a parent, who is paying for a child’s tuition, entitled to see the child’s transcripts?

The case of Lewis v. Correia, 2014 ABQB 314 stands for the principle that a parent paying support is not an automatic wallet with no rights.

In Lewis v. Correia the father, who was paying for his daughter’s post-secondary tuition, was not convinced that his daughter was continuously attending class, and therefore requested updated transcripts from his daughter. The daughter refused to provide her father with her grades, and eventually the father applied to the courts to compel his daughter to submit regularly updated transcripts.

Justice Veit stated that:

“A minor child on whose behalf s.7 expenses are claimed for attendance at post-secondary educational institution must provide basic information to establish active attendance in the program; it is not sufficient for the debtor parent to be provided with information that their child is enrolled in a post-secondary education program. A requirement to provide information is not equivalent to requiring the child to maintain a filial relationship with the support debtor.”

Justice Veit determines that proof of enrolment does not suffice with respect to the daughter’s ongoing obligation to provide information to her father.

Furthermore, Justice Veit states that an adult child that is not merely looking to be awarded s.7 expenses but also ongoing financial support, must provide the father with her updated transcripts.

The Court also recognized that adult children may be obligated to pay for a portion of their s.7 expenses if they have an opportunity to work part-time.

To learn more about adult child support as well as the services provided by Krol & Krol, call 905.707.3370 today.

What are the tax implications of child support?

Child support is not deductible to the payor nor taxable to the recipient.

However, child support that is paid pursuant to a judge’s order or an agreement before May 1, 1997 can be deductible and taxable if they have the following features:

  • The parties must be living separate and apart when the payment is made;
  • The payments must be considered an allowance payable on a periodic basis;
  • The support payments were made for spousal support or child support (or both), and the recipient has total control over how the support payment is used;
  • The support payments must be made directly to the recipient spouse;
  • The support payments were made in the year or year prior to the judge’s order or agreement;
  • If the payment is made to a (former) spouse,
    • The parties must be living apart by reason of a breakdown of the marriage
    • The support payment must be made pursuant to an order of a tribunal or written agreement (such as a separation agreement); and
  • The support payments were made pursuant to that order or agreement.

It is interesting to note that if a judge orders both spousal and child support, payments will first be treated as child support and then spousal support for tax purposes. That means that all child support must be paid to the recipient before the payor can claim a deduction on his income taxes for spousal support.

To learn more about child support and the tax implications as well as the services provided by Krol & Krol, call 905.707.3370 today.

Is life insurance required to secure a child and/or spousal support obligation?

A court may well require the payor of support to secure the payment by obtaining a life insurance policy to secure their support obligation. This way, in case the support-payor dies amidst his/her obligations, the children and/or spouse will be awarded the life insurance proceeds arising from the payor’s death in lieu of future support payments.

For instance, the Ontario Court of Appeal in Katz v. Katz ordered the father to purchase a life insurance policy for $500,000 and designate his children as beneficiaries and their mother as trustee of this policy. Furthermore, the judge also required the father to obtain the policy within 60 days of the release of reasons for judgment.

Just as the Court of Appeal held in Katz, the parties were made well aware that once the father’s child support obligations ceased to exist, the requirement to maintain the policy would cease.

Interestingly, in Katz, the father had a medical condition that prevented him from purchasing life insurance. Upon hearing the news, the mother of the children brought a motion for contempt based on the fact that the father was not complying with the court’s original order to obtain life insurance. The motions court ultimately ruled that there was nothing more the husband could do, and thereby it refused to make any further order with respect to the father purchasing life insurance.

To learn more about life insurance and child support as well as the services provided by Krol & Krol, call 905.707.3370 today.