Who is a “child of the marriage”?

One of the most contentious issues around child support is defining who is a child of the marriage, and therefore entitled to be supported.

The Divorce Act defines a “child of the marriage” as a child of two spouses or former spouses, who is under the age of majority (and under the parents’ charge), or who is the age of majority or over and still under the parents’ charge because of illness, disability or other cause.

Because the age of majority varies across jurisdictions in Canada, the definition of a “child of the marriage” will depend on the province in which the child is living. The age of majority is 18 years of age in Alberta, Manitoba, New Brunswick, Ontario, P.E.I., Quebec and Saskatchewan. For all other provinces, the age of majority is 19 years of age.

It also means that older children who continue their education beyond high school, and who continue to rely on their parents, can still be considered children of the marriage, entitled to support.

Furthermore, a child of the marriage does not have to be biologically related to both parents; it will suffice if one or both parents stand “in the place of a parent” (sometimes referred to as in loco parentis). In other words, an adopted or step parent will, in most cases, have an obligation to support a child.

The leading case for step-parents is the Supreme Court of Canada case in Chartier v. Chartier, where the court looked at the actions and intentions of parents, and stated:

38 …The appellant argued that the test for whether or not a person stands in the place of a parent should be determined exclusively from the perspective of the child.  I cannot accept this test.  In many cases, a child will be very young and it will be difficult to determine whether that child considers the person as a parental figure.  Further, an older child may resent his or her step-parent and reject the authority of that person as a parent, even though, objectively, that person effectively provides for the child and stands in the place of a parent.  The opinion of the child regarding the relationship with the step-parent is important, but it constitutes only one of many factors to be considered.  In particular, attention must be given to the representations of the step-parent, independently of the child’s response.

The definition of in loco parentis has been applied quite broadly by courts. In Gardiner v. Gardiner the Supreme Court of Nova Scotia held that a woman who had no intention of adopting children but treated them kindly while living in the same house as their father stood in the place of a parent.


Calculating the Shared Custody Threshold

Section 9 of the Child Support Guidelines (“CSG”) states:

Shared custody

9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

  • (a) the amounts set out in the applicable tables for each of the spouses;

  • (b) the increased costs of shared custody arrangements; and

  • (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

Any offset to this Table amount is subject to a factoral analysis and judicial discretion, and parents involved in joint parenting may not necessarily qualify for shared parenting as defined under the Guidelines.

The methodology for determining when the 40% threshold has been reached, by counting days or by counting hours, is varied and subject to disagreement in the case law. In some cases the 40% threshold may not be reached with one method but may be achieved through another.

The Ontario Court of Appeal rejected a rigid formulation in Froom v. Froom to calculating the 40% threshold:

[2]               There is no universally accepted method for determining the 40% and we do not think that this appeal is the appropriate case to make that determination.  On the record before her, we are of the view that the trial judge did not err in the approach and the method she chose.  That approach and that method were consistent with many trial decisions, which seek to avoid rigid calculations and, instead, look at whether physical custody of the children is truly shared.

Similarly, the B.C. Court of Appeal rejected a “tight accounting” approach in Berry v. Hart,

[10]   In my view the issue is a matter of judgment not amenable to simply a time accounting exercise.  I consider that in determining whether the threshold level for application of s. 9 is met the question is whether the paying parent spends such a sizeable percentage of time with a child or children that, on any reasonable view of the evidence and considering the advantage that may accrue to a child in spending the occasional additional day, part day or hour with a parent, one can say reasonably that the 40 percent or more level is achieved.  It follows, in my view, that a court may assess child-parent time as meeting the s. 9 criteria without a tight accounting.  That assessment should be made by considering the broader context of the parenting arrangement.  It perhaps bears mentioning, further, that simply finding that a parental regime comes within s. 9 does not compel an automatic reduction in child support.  That determination must be made considering all of the criteria in ss. (a) to (c) of s. 9.


Modifications to the Child Support Guidelines Formula

The Child Support Guidelines formula, which is based on several broad assumptions, also contains certain modifications for special situations.

Although My Support Calculator uses Line 101 income, the Guidelines use Line 150 income, which is subject to Schedule III adjustments.

The Guidelines formula uses tax calculations, deductions and credits, such as Employment Insurance (EI), Canada Pension Plan (CPP) contributions, and the Goods and Services Tax (GST) or Harmonized Sales Tax (HST).

It does not include discretionary actions such as charitable donations, RRSP savings, political contributions, union dues, disability allowances, dependant relatives or special circumstances. The Guidelines formula also excludes the federal Child Tax Benefit or tax rebates for children.

The effect of various provincial taxes are accounted for by smoothing the curve on which payment increases, ensuring that payment does not decrease as income increases.

The Guideline formula includes a self-support reserve used for basic needs as a minimal standard of living for a single adult paying support. The cut-off is usually the threshold used for payment of federal income taxes. This is the income that society considers the minimum income for an individual to take after their own needs, and is close to the average social assistance available for single adults.

Finally, modifications are made to the Guidelines formula to remove disincentives for lower income people to increase their income. This marginal capping rate creates a gradual transition from the self-support reserve amount to full payment under the formula.

The effect of the marginal capping rate on the Child Support Guidelines is as follows:

Principles and Assumptions Behind the Child Support Guidelines

When the Federal Child Support Guidelines were released in 1997, a lot of hard work and research was put into them by the Department of Justice. The Guidelines first emerged out of a Family Law Committee mandate in 1990 to look at child support in Canada.

However, a number of assumptions were made in developing the Guidelines, and are useful to understand how and why these numbers were created, which are detailed in DOJ reports by R. Finnie, C. Giliberti, and D. Stripinis in 1993 and 1995.

The Guidelines assume that families with higher income spend more on children than those with lower incomes, but acknowledge that the the actual “cost of raising children” is really just theoretical. The purpose of the Guidelines is to try to maintain similar spending on the children as occurred before a separation.

The Guidelines also make the assumption that the parent and the child will save the same standard of living within their principal residence. The Guidelines also assume that if the incomes of the parents are equal then it would be fair and equitable that each of them should contribute equally to the financial support of the children. This also assumes that both parents are earning incomes and pay taxes.

Obviously most parents do not necessarily have the same income, but the Guidelines compromise complete accuracy by achieving some level of predictability, which helps reduce conflicts over child support.

The mathematical equation used by the Guidelines is based on an assumption of one member of the household for the paying parent (PP), and the assumption that the receiving parent (RP) is single and their household is comprised of the children and themselves only.

The formula ends up looking something like this:

Child Support Guildelines formula


Video: Important Points on Enforcing Child and Spousal Support Payments

Russell Alexander notes the following points about child support and spousal support enforcement in Ontario:

  1. Filing and deduction is automatic
  2. Other support agreements may be filed voluntarily with the Family Responsibility Office (FRO)
  3. Enforcement of support payments may require legal action
  4. Additional enforcement mechanisms are also available through FRO

No Consent Found in Settlement Order

The Ontario Superior Court of Justice Divisional Court released the decision in Siahbazi v. Rastegar today, finding a lack of procedural fairness and absence of consent to an order made by Justice John McMunagle at a settlement conference.

The wife’s counsel had prepared a draft order over the lunch hour, and using the discrepancy of incomes between the parties and DIVORCEmate calculations, proposed that the husband would pay:

  • retroactive child support of $33,016.50
  • $14,808 in retroactive spousal support
  • ongoing spousal support of $510 per month

The husband, who was self-represented, did not sign the order and did not have the opportunity to discuss some of these provisions. The court noted that the conference judge only had the authority to make final orders on consent, and found that the husband did not provide informed consent and it was not freely given due to pressure applied by Justice McMunagle,

[6]               Even if this equivocal exchange could be construed as consent to the terms being appealed, it was not an informed consent and it was not freely given.  The conference judge misinformed Mr. Rastegar regarding his legal obligations and effectively bullied him into acquiescence.

The court also noted a lack of procedural fairness and a breach of financial justice,

[8]               While recognizing that a settlement conference is a more relaxed and informal process than some other steps in a proceeding, the conference judge in this case crossed the boundary of appropriate judicial comment.  He made references to his own personal circumstances and experience in order to take inappropriate “judicial notice” of facts, including the cultural background of Mr. Rastegar.  At one point, when Mr. Rastegar politely suggested that the conference judge was “kind of not impartial about whatever happened back in Iran”, the judge interrupted him mid-sentence to say “I have some knowledge of Sharia law and we all know how badly women are treated under Sharia law”.  He went on to say “We don’t have people being stoned to death in this country because they happen to look at a man or they’re not wearing a veil or whatever”.  Before the purported consent by Mr. Rastegar the conference judge also said to him “You don’t get to call the shots anymore.  All you get to do, sir, is write a cheque, straight up.  I know that’s not how they work in different countries, and particularly I have some knowledge of Iran.”

[9]               The conference judge constantly interrupted Mr. Rastegar and cut him off mid-sentence.  Mr. Rastegar was belittled and criticized without a fair opportunity to express himself.  The judge effectively prevented him from having any meaningful participation in the process.

[11]           At the beginning of the conference, without having heard any evidence whatsoever, or even any submission on the subject, the conference judge informed Mr. Rastegar that his marriage contract (signed in Iran when the parties were domiciled there) was “not worth the paper it’s written on” … “is not a legally binding contract” and “I’m telling you right now I’m not putting any weight on it”.

[12]           The conference judge summarily pronounced his opinions and conclusions on other issues without any supporting evidence.

The court specifically noted that Justice McMunagle did not take into consideration D.B.S. v. S.R.G. for retroactive child support, or entitlement to spousal support under the Divorce Act

The lack of true consent in this case vitiates the terms of the order in relation to retroactive payments and ongoing spousal support. The court set aside the parts of the order relating to the payment issues identified above, without expressing any opinion on the merits or prejudicing the wife’s claim on those issues.


Child Support Class Action Statement of Claim

The class action launched recently against the Province of Manitoba for deducting child support payments from social assistance was detailed on this site here.

Given the enormous public interest in this case, the lawyer representing the plaintiffs, Norman S. Rosenbaum of Merchant Law Group, has made the Statement of Claim available below:

Child Support Class Action

Child Support for Adult Child in College

Justice Burrows in the Court of Queen’s Bench of Alberta recently ruled in Beckley v. Beckley that a mother whose adult child in college was still living with her was not entitled to receive child support.

The 20-year-old daughter was a full-time nursing student at Lakeland College, and lived in the same room with her boyfriend in her mother’s house. Prior to commencing her studies she was working full-time at $24 an hour.

The daughter claimed $4,757.88 in expenses for her four-month term, including tuition, books, and car-related expenses. She planned on working during the summers, which would earn approximately $15,000.

The father characterized the boyfriend as a common-law relationship, and said he was capable of supporting her with his full-time job. The mother disputed this characterization and said he was just living there until he could find more suitable accommodations.

This characterization was important because of the definition of a “child of the marriage” under the Divorce Act:

“child of the marriage”means a child of two spouses or former spouses who, at the material time,

  • (a) is under the age of majority and who has not withdrawn from their charge, or
  • (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

If the daughter was not considered a child of the marriage, the mother was not required to support her. Though living in the same house they had a strained relationship and did not have much contact.

However, if the daughter was a child of the marriage, the father would be required to pay the amount of child support specified in the Federal Child Support Guidelines:

Child the age of majority or over – Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support is

(a)       the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b)       if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

Justice Burrows determined that the daughter’s school expenses exceeded her income by only $700 a month, including boarding expense in her mother’s house. He decided that it was unnecessary to determine whether the daughter was still a child of the marriage based on three factors:

  1. The daughter’s full-time employment for the two years after reaching the age of majority
  2. She paid almost all of her living and school expenses, despite being a student
  3. She lived with a fully employed boyfriend with the financial ability to support her

Instead,  he considered the appropriate amount of child support as zero, even though the daughter lived in her mother’s house, and the father’s post-spousal support income of $161,491 indicated he could easily afford support.

What Does the Family Responsibility Office (FRO) Do?

Russell Alexander provides a summary of the role and responsibilities of the Family Responsibility Office (FRO) in Ontario. Support payors should be aware that payments not made to the FRO when required to do so will not be credited, and may result in an additional administration fee.

On November 1, 2011, the FRO introduced dedicated case contact people to replace call centre staff to increase familiarity of FRO representatives dealing with inquiries.

Alexander details some of the powers of the FRO in light of delinquent payments:

•garnishing bank accounts (i.e. taking the money owed directly from the payor’s bank account);

•reporting the payor to the credit bureau;

•suspending the payor’s driver’s licence, Canadian passport and federal licences (such as a pilot’s licence);

•placing a lien on the payor’s personal property by registering the amount owed with the Ontario government;

•issuing a writ of seizure and sale for property owned by the payor (any profit from the sale of the property is used to pay the support arrears);

•reporting the payor to his or her professional or occupational organization(s);

•seizing any lottery winnings to which the payor is entitled; and

•starting a “Default Hearing” where the payor is required to explain the default in support payments, and may be liable to serve up to 180 days in jail.