by: G. Ross Davis
Bennett Best Burn LLP, Toronto

On May 1, 1997 major changes came into effect that affect thousands of divorced Canadians.

One of those changes eliminates the obligation to pay income tax on child support payments and does away with the deduction for those paying child support. And, from now on, child support will depend primarily (not exclusively) on the payor's income

The base amount will be set by a Table said to represent the proportion of income families spend on their children for the basics. Added to this figure is a percentage of "special" expenses (which lawyers are calling "add-ons") based on both parties' incomes. The Federal government anticipates that the amounts paid for child support will increase across the country.

These Guidelines are basically a formula the courts have to use that will let couples know with certainty the amount they have to pay or will receive for child support

The legislation includes an "undue hardship" provision permitting a Judge to depart from the Guidelines but only the parent making that claim can demonstrate that he or she has a lower standard of living than the other.

A court can decline to apply the Guidelines where an order makes "special provision" for support of children, for instance, where a parent has agreed to delay the sale of the matrimonial home for a period of time. And a court does have some leeway where the parents share custody or where children are over the age of majority or where a step- parent is being asked to pay support.

Child support agreed to or ordered prior to May 1, 1997 will continue to be deductible/taxable if both parents agree. If either side wishes, however, he or she can apply to take advantage of the new Guidelines. Before doing so, he or she will need to know just how the (non-deductible/non-taxable) Guideline amount compares with the (deductible/taxable) amount in the existing order. Some will he better off continuing to deduct and declare child support under an existing order or agreement.

Strict rules for calculating child support mean more predictability and less time spent on each individual case, some say at the expense of individual fairness. For most divorcing parents however, the Guidelines will settle quickly, and less expensively, the question of who pays how much for child support.

Ross Davis is a partner with the Toronto law firm Bennett Best Burn LLP. He recently co-chaired a satellite program for Ontario lawyers on the introduction of Child Support Guidelines.

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