2006 Amendments to the Federal Child Support Guidelines
By Elizabeth Jollimore Q.C.
The most obvious example of a child-centred family justice strategy is the substance of legislation dealing with child support. That legislation meets the objectives of such an approach by reducing parents' need to resort to the adversarial process and by minimizing one aspect of the potentially negative impact of separation and divorce on children through ensuring their financial base remains as stable as possible.
Enacted in 1997, the Federal Child Support Guidelines (Guidelines) were amended in November 2005 and those amendments came into force on May 1, 2006. The amendments addressed four particular issues: providing a test for determining what is an extraordinary expense; creating uniformity for the treatment of foreign-taxed income; updating the amounts in the tables and revising the undue hardship test. These changes will affect almost all our clients, if only because the table amounts have changed.
In describing the amendments to the Guidelines, Len Fishman reminds us that our first step in advising clients about child support is determining whether our client is governed by the Federal Child Support Guidelines or provincial guidelines, designated pursuant to s. 2(5) of the Divorce Act. His paper further puts the amendments into their appropriate context, whether that is one of divergent judicial interpretation or of changing rates of taxation.
The amendments are important where there are claims for s. 7 expenses, where a payor has income taxed in a foreign country, where the federal tables are used or where there is an undue hardship claim. They are also relevant in cases under provincial legislation in provinces that have incorporated the Guidelines or federal tables, as in British Columbia , and in provinces where the federal amendments have been duplicated, as in Ontario.
The provision of the Federal Child Support Guidelines addressing special or extraordinary expenses has been amended to clarify the category dealing with primary or secondary school education and educational programs which meet the child's particular needs (s. 7(1)(d)) and the category dealing with extraordinary expenses for extracurricular activities (s. 7(1)(f)). The amendments address the divergent interpretations given to these sections by Canadian Courts by adopting language used in Manitoba since 2001.
Section 20 of the Federal Child Support Guidelines has been amended to recognize that a payor may live in a foreign jurisdiction where income is taxed more heavily than in Canada . Until this amendment was enacted, Courts could only consider the situation of a payor whose income was taxed at a lower rate in a foreign jurisdiction.
The table amounts have also been amended. For some provinces, this will result in an automatic change to their provincial tables (which simply incorporated the federal amounts). Len Fishman gives a vivid explanation of the impact of these changes that makes it well worth ensuring your client is using current tables.
Finally, the determination of the income in each household (the first step in calculating the comparative standard of living) has been changed. The calculation now permits deduction of Employment Insurance premiums and CPP or QPP premiums.
-  SOR/97-175
-  SOR/2005-400. Please note that further amendments were made to the Federal Child Support Guidelines as of April 1, 2007. These amendments relate to the Universal Child Care Benefit. The amendments as well as the Regulatory Impact Analysis Statement can be found in the Canada Gazette.
-  R.S.C. 1985 (2nd Supp.), c. 3.
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