Federal Child Support Guidelines (SOR/97-175)

Elements of a Child Support Order

Marginal note:Form of payments

11 The court may require in a child support order that the amount payable under the order be paid in periodic payments, in a lump sum or in a lump sum and periodic payments.

Marginal note:Security

12 The court may require in the child support order that the amount payable under the order be paid or secured, or paid and secured, in the manner specified in the order.

Marginal note:Information to be specified in order

13 A child support order must include the following information:

• (a) the name and birth date of each child to whom the order relates;

• (b) the income of any spouse whose income is used to determine the amount of the child support order;

• (c) the amount determined under paragraph 3(1)(a) for the number of children to whom the order relates;

• (d) the amount determined under paragraph 3(2)(b) for a child the age of majority or over;

• (e) the particulars of any expense described in subsection 7(1), the child to whom the expense relates, and the amount of the expense or, where that amount cannot be determined, the proportion to be paid in relation to the expense; and

• (f) the date on which the lump sum or first payment is payable and the day of the month or other time period on which all subsequent payments are to be made.

Variation of Child Support Orders

Marginal note:Circumstances for variation

14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

• (a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;

• (b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

• (c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

Income

Marginal note:Determination of annual income

• 15 (1) Subject to subsection (2), a spouse’s annual income is determined by the court in accordance with sections 16 to 20.

• Marginal note:Agreement

  (2) Where both spouses agree in writing on the annual income of a spouse, the court may consider that amount to be the spouse’s income for the purposes of these Guidelines if the court thinks that the amount is reasonable having regard to the income information provided under section 21.

Marginal note:Calculation of annual income

16 Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

Marginal note:Pattern of income

• 17 (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

• Marginal note:Non-recurring losses

  (2) Where a spouse has incurred a non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse’s annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections 6 and 7 of Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate.

Marginal note:Shareholder, director or officer

• 18 (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include

  • (a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or

  • (b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.

• Marginal note:Adjustment to corporation’s pre-tax income

  (2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.

Marginal note:Imputing income

• 19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

  • (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

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

  • (c) the 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 spouse’s property is not reasonably utilized to generate income;

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

  • (g) the spouse unreasonably deducts expenses from income;

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

• Marginal note:Reasonableness of expenses

  (2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

Marginal note:Non-resident

• 20 (1) 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.

• Marginal note:Non-resident taxed at higher rates

  (2) If a spouse is a non-resident of Canada and resides in a country that has effective rates of income tax that are significantly higher than those applicable in the province in which the other spouse habitually resides, the spouse’s annual income is the amount that the court determines to be appropriate taking those rates into consideration.

Income Information

Marginal note:Obligation of applicant

• 21 (1) A spouse who is applying for a child support order and whose income information is necessary to determine the amount of the order must include the following with the application:

  • (a) a copy of every personal income tax return filed by the spouse for each of the three most recent taxation years;

  • (b) a copy of every notice of assessment and reassessment issued to the spouse for each of the three most recent taxation years;

  • (c) where the spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the spouse’s employer setting out that information including the spouse’s rate of annual salary or remuneration;

  • (d) where the spouse is self-employed, for the three most recent taxation years

    • (i) the financial statements of the spouse’s business or professional practice, other than a partnership, and

    • (ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the spouse does not deal at arm’s length;

  • (e) where the spouse is a partner in a partnership, confirmation of the spouse’s income and draw from, and capital in, the partnership for its three most recent taxation years;

  • (f) where the spouse controls a corporation, for its three most recent taxation years

    • (i) the financial statements of the corporation and its subsidiaries, and

    • (ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;

  • (g) where the spouse is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements; and

  • (h) in addition to any income information that must be included under paragraphs (c) to (g), where the spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information.

• Marginal note:Obligation of respondent

  (2) A spouse who is served with an application for a child support order and whose income information is necessary to determine the amount of the order, must, within 30 days after the application is served if the spouse resides in Canada or the United States or within 60 days if the spouse resides elsewhere, or such other time limit as the court specifies, provide the court, as well as the other spouse or the order assignee, as the case may be, with the documents referred to in subsection (1).

• Marginal note:Special expenses or undue hardship

  (3) Where, in the course of proceedings in respect of an application for a child support order, a spouse requests an amount to cover expenses referred to in subsection 7(1) or pleads undue hardship, the spouse who would be receiving the amount of child support must, within 30 days after the amount is sought or undue hardship is pleaded if the spouse resides in Canada or the United States or within 60 days if the spouse resides elsewhere, or such other time limit as the court specifies, provide the court and the other spouse with the documents referred to in subsection (1).

• Marginal note:Income over $150,000

  (4) Where, in the course of proceedings in respect of an application for a child support order, it is established that the income of the spouse who would be paying the amount of child support is greater than $150,000, the other spouse must, within 30 days after the income is established to be greater than $150,000 if the other spouse resides in Canada or the United States or within 60 days if the other spouse resides elsewhere, or such other time limit as the court specifies, provide the court and the spouse with the documents referred to in subsection (1).

• Marginal note:Making of rules not precluded

  (5) Nothing in this section precludes the making of rules by a competent authority, within the meaning of section 25 of the Act, respecting the disclosure of income information that is considered necessary for the purposes of the determination of an amount of a child support order.

Marginal note:Failure to comply

• 22 (1) Where a spouse fails to comply with section 21, the other spouse may apply

  • (a) to have the application for a child support order set down for a hearing, or move for judgment; or

  • (b) for an order requiring the spouse who failed to comply to provide the court, as well as the other spouse or order assignee, as the case may be, with the required documents.

• Marginal note:Costs of the proceedings

  (2) Where a court makes an order under paragraph (1)(a) or (b), the court may award costs in favour of the other spouse up to an amount that fully compensates the other spouse for all costs incurred in the proceedings.

Marginal note:Adverse inference

23 Where the court proceeds to a hearing on the basis of an application under paragraph 22(1)(a), the court may draw an adverse inference against the spouse who failed to comply and impute income to that spouse in such amount as it considers appropriate.

Marginal note:Failure to comply with court order

24 Where a spouse fails to comply with an order issued on the basis of an application under paragraph 22(1)(b), the court may

• (a) strike out any of the spouse’s pleadings;

• (b) make a contempt order against the spouse;

• (c) proceed to a hearing, in the course of which it may draw an adverse inference against the spouse and impute income to that spouse in such amount as it considers appropriate; and

• (d) award costs in favour of the other spouse up to an amount that fully compensates the other spouse for all costs incurred in the proceedings.

Marginal note:Continuing obligation to provide income information

• 25 (1) Every spouse against whom a child support order has been made must, on the written request of the other spouse or the order assignee, not more than once a year after the making of the order and as long as the child is a child within the meaning of these Guidelines, provide that other spouse or the order assignee with

  • (a) the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents;

  • (b) as applicable, any current information, in writing, about the status of any expenses included in the order pursuant to subsection 7(1); and

  • (c) as applicable, any current information, in writing, about the circumstances relied on by the court in a determination of undue hardship.

• Marginal note:Below minimum income

  (2) Where a court has determined that the spouse against whom a child support order is sought does not have to pay child support because his or her income level is below the minimum amount required for application of the tables, that spouse must, on the written request of the other spouse, not more than once a year after the determination and as long as the child is a child within the meaning of these Guidelines, provide the other spouse with the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents.

• Marginal note:Obligation of receiving spouse

  (3) Where the income information of the spouse in favour of whom a child support order is made is used to determine the amount of the order, the spouse must, not more than once a year after the making of the order and as long as the child is a child within the meaning of these Guidelines, on the written request of the other spouse, provide the other spouse with the documents and information referred to in subsection (1).

• Marginal note:Information requests

  (4) Where a spouse or an order assignee requests information from the other spouse under any of subsections (1) to (3) and the income information of the requesting spouse is used to determine the amount of the child support order, the requesting spouse or order assignee must include the documents and information referred to in subsection (1) with the request.

• Marginal note:Time limit

  (5) A spouse who receives a request made under any of subsections (1) to (3) must provide the required documents within 30 days after the request’s receipt if the spouse resides in Canada or the United States and within 60 days after the request’s receipt if the spouse resides elsewhere.

• Marginal note:Deemed receipt

  (6) A request made under any of subsections (1) to (3) is deemed to have been received 10 days after it is sent.

• Marginal note:Failure to comply

  (7) A court may, on application by either spouse or an order assignee, where the other spouse has failed to comply with any of subsections (1) to (3)

  • (a) consider the other spouse to be in contempt of court and award costs in favour of the applicant up to an amount that fully compensates the applicant for all costs incurred in the proceedings; or

  • (b) make an order requiring the other spouse to provide the required documents to the court, as well as to the spouse or order assignee, as the case may be.

• Marginal note:Unenforceable provision

  (8) A provision in a judgment, order or agreement purporting to limit a spouse’s obligation to provide documents under this section is unenforceable.