Emerging Trends in Child Support

A. TERMINATION OF CHILD SUPPORT

  • Terminating Child Support When a Child Withdraws from Parental Care:
    • Voluntary withdrawal is when a child freely choses to cut family bonds and strike out a life on their own.
    • This does not include a child who is driven from the home. Being driven out would include cases of leaving home due to emotional or physical abuse, leaving due to unbearable conflict in home, a child who has left but would like to return home or a child who leaves home to meet his/her own best interests.
    • To terminate support the court would need evidence that the child repudiated his/her relationship with the parent despite the parent’s efforts to preserve the relationship.
    • Other examples of voluntary withdrawal which may prompt the termination of child support include children starting their own families, children making independent decisions, children supporting themselves, parents treating children as independent, children whose actions indicate they consider themselves independent of parental control, child leaving parents voluntarily and freely.
  • Terminating Child Support where there is no Relationship between the Parent and Child:
    • The courts will generally not terminate support merely due to an absence of relationship between the parent and child.
  • Terminating Child Support in Cases of Adult Children and Multiple Degrees: TREND: THE COURTS ARE BECOMING LESS HESITANT TO EXTEND SUPPORT FOR ADULT CHILDREN BEYOND THEIR FIRST DEGREE.
    • In these types of cases, the court will consider:
      • Whether the child is enrolled full-time or part-time;
      • Child’s previous academic achievements and prior degrees;
      • Logical connection between prior and current education;
      • Child’s career plan and steps toward self-sufficiency;
      • Child’s age and period of additional education;
      • Child’s academic performance;
      • Commitment to one area of study;
      • Family’s means and what percent of the family’s gross income would cover education;
      • Child’s means and ability to contribute to own education costs;
      • Child’s relationship with payor parent;
      • Family education history (parents and siblings’ education);
      • Parent’s intentions during marriage;
      • Child’s application for loans, scholarships, bursaries, etc.;
      • Parent’s contemplation of education in prior orders or agreements;
      • Child’s sharing of academic information with payor-parent; and,
      • Family’s savings for child’s education (RESP, etc.).
  • Easton v. Coxhead, 2018 CarswellOnt14173 (Ont SCJ).
    • Mom seeks ongoing child support after a long-term marriage with two children. The younger child, age twenty-two, had already obtained a college diploma and was now pursuing a four-year university degree.
    • The court found that the younger child remained a child of the marriage, eligible for support based on the following reasons:
      • This was the first degree. The previous schooling resulted in a diploma.
      • Child was enrolled in full time studies.
      • Child was only twenty-two years old.
      • Chosen program was a logical extension of the prior diploma and was consistent with career plan.
      • Not a case of child jumping around and indecision.
      • Parents had means to contribute.
      • Child had some means to contribute via earnings from summer employment.
      • Evidence that the parents, while married, agreed to help the children pay for their education.

B. CHILD SUPPORT TRENDS WHEN THE PAYOR IS A PROFESSIONAL, HIGH INCOME EARNER OR CORPORATE SHAREHOLDERS

  • Child Support and the High-Income Earner:
    • The Child Support Guidelines have an income calculation cap of $150,000/year. What happens when the payor brings home five or ten times the cap amount?
    • Judges may depart from the Table amount to determine a figure that is both fair and representative of the unique lifestyles of the children of high-income earners. This often requires a detailed examination of the facts of each specific case including:
      • Previous expenditure patterns;
      • Pre-separation lifestyle;
      • Whether the Table amount is unreasonable, inadequate or excessive;
      • The children's means and needs;
      • The position of the parties;
      • The actual expenses;
      • The amount of s.7 expenses and their reasonableness;
      • Existing agreements/consent orders;
      • Budgetary requirements of the family - providing a detailed family budget gives the court insight into where the support will go and can often act to reinforce the appropriateness of the Guidelines amount for payees;
      • Financial Statements and disclosure;
      • Whether and how the payor's income fluctuates year to year including bonus' or dividends;
      • Equalization of Net Family Property
      • The payor's and payee's incomes and employment
      • The amount of conflict between the parties; and,
      • The children's best interests.
    • Recent cases have shown us that it is not unusual for a court to order the Table amount for payors with incomes in the $1,000,000 - $2,000,000 range. When the payor's income is beyond the $4,000,000 mark, we see that the courts are more willing to deviate from the Guidelines.
    • Depending on the facts of the case, s.7 expenses may be folded into the support amount or they may be awarded in addition to child support.
    • Overall, the determination of whether Table support will be ordered or not is a highly contextual question.
    • Parties involved in high income child support disputes should always be mindful of disclosure requirements and provide evidence to assist the court in determining income figures. This can be a complicated task when it comes to very high-income earners and the more evidence a party can provide the better. When a party fails to provide disclosure, the court's inquiry into the appropriateness of the Table amount may factor in that party's blameworthy conduct.
  • Multi-Owner Corporations and Child Support TREND: IF YOU ARE ONE OF MULTIPLE OWNERS IN A CORPORATION, ONLY THE PORTION OF PRE-TAX EARNINGS THAT YOU CONTROL (OR LESS THAN THAT) SHOULD BE ATTRIBUTED TO YOU FOR THE PURPOSES OF CALCULATING CHILD SUPPORT.
    • AMW v. BW, 2018 ABQB 518: In this case, support-payor Dad was one of three shareholders of a corporation. The Alberta Court considered how (and whether) to allocate pre-tax corporate income to Dad.
    • The court attributed one-sixth of the pre-tax income to the father for the purposes of determining his child-support obligations.
    • The court accepted the father's argument that he only had control over one-third of the pre-tax income. Further, the court accepted the father's argument that a corporation must retain some pre-tax income for contingency purposes in an uncertain economy, as a hedge against the possibility of future falling revenues to allow the company to meet future financial obligations.

C. OTHER GENERAL TRENDS

  • Step-Parents - TREND: FIRST DETERMINE THE BIOLOGICAL PARENTS OBLIGATION UNDER THE GUIDELINES, THEN ANALYZE THE CHILD'S NEEDS TO DETERMINE THE STEPPARENT'S CHILD SUPPORT OBLIGATION.
    • Sullivan v. Struck, 2018 BCCA 256:
      • Obligations of biological parents and step-parents must be assessed independently.
      • When determining the quantum of a stepparent's child support obligation, the first step in the analysis is determining the child support obligation of the biological parent. The quantum of the biological parent's support will be based on the Table amount from the Child Support Guidelines unless one of the discretionary provisions from the Guidelines applies.
      • A biological parent cannot seek to reduce his/her child support obligation by asking the court to have a stepparent to contribute to that obligation.
      • Any support payable by a stepparent would increase the total amount accruing to the child, not to helping the biological parent meet his/her own support obligation.
      • Once the obligation of the biological parent is determined, the court may determine the stepparent's obligation, taking into account the objectives of the Child Support Guidelines and the child's standard of living.
      • S.5 of the Guidelines gives the court flexibility to depart from rigid adherence to the Table amounts in relation to step-parents.