It used to be the case that the party claiming support had to jump through all sorts of hoops to prove the amount of support sought was what the child actually required and that the payor had the means to pay the amount of support sought. These days, the amount of child support awarded is the amount set out in the tables attached to the Child Support Guidelines. The Guidelines has helped to streamline the court process, reduced conflict between parents, and ensured a more consistent treatment of parents and their children.

The tables were adjusted on 1 May 2006. The amount of child support required of lower earning parents was reduced, and the amount of support for higher earning parents was increased. Dramatically. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts.

The Guidelines' key presumption is set out in s. 3(1):

This is, however, only a presumption, and can be challenged or "rebutted." (This is discussed is the following chapter, Child Support > Exceptions to the Guidelines.) In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross annual income at the time the order is made.

Over time, of course, the payor's income may rise or fall. It is open to both the payor, the person paying support, and the recipient, the person receiving support, to make an application to change the original order so that the amount of child support reflects the payor's current income. The payor typically makes such an application if his or her income has fallen, while the recipient will make the application when the payor's income has increased. To avoid a situation where parents are contiually making trips back to court to seek an adjustment of child support, it is a good idea to include a provision in an agreement or order for child support that requires both the payor and the recipient to regularly exchange income information until the children are no longer eligible for support.

Another of the Guidelines's important presumptions is that the amount of support payable is set according to the number of children to which each particular support order relates. If you have two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children at your income level and the second will be based on the Guidelines amount for three children at your income. The amount you will be required to pay in each order is not based on the Guidelines amount for the total number of five children.

Finally, the amount of support payable is based only on the payor's income. In most situations the recipient's income is not a factor, nor is the income of the payor's new spouse or partner.

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The base amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the child's share of the rent, the hydro and gas bills, shoes, groceries, diapers, clothes, toothpaste, school field trip fees and so forth. The base amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or othodontic work. In addition to the base amount of support payable, a paying parent may also be required to cover a portion of these other expenses, so long as they qualify as "special and/or extraordinary expenses" under the Guidelines.

"Special and/or extraordinary expenses" are defined in s. 7 of the Guidelines:

Expenses such as these are considered to be "shareable" between the parents. This provision of the Guidelines is intended to ensure that if either parent incurs additional expenses for the child's needs or actvities then both parents will share the cost, on the principle that it is in the child's best interests to have such needs met or to participate in such activities.

If a certain expense if found to qualify as a "special and/or extraordinary expense" under the s. 7 definition, the court may make an order that a parent pay an additional amount, on top the usual Guidelines base amount of support, to cover all or a portion of the cost of that expense.

The Sharing of Qualifying Expenses

Under s. 7(2) of the Guidelines, expenses that qualify as "special and/or extraordinary expenses" are shared by the parents in proportion to their incomes, after deducting any contribution to those costs made by the child or the governments, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child, the income of the payor plus the income of the recipient, and to figure how much each parent's share of that pot is, and then pay the child's special expenses according to each parent's share.

The easiest way to calculate a parent's "proportionate share" is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples:

If one parent earns $75,000 per year and the other $25,000, the total pot available to the child is $100,000. Of that sum, the first parent contributes 75% and the second parent 25%. As a result, the first parent would be ordered to pay 75% of qualifying expenses, and the second parent 25%.

If one parent earns $48,000 per year and the other $62,000, the total of their incomes is $110,000. The first parent's income is 43.6% of the total, and the other parent's income is 56.4% of the total. The first parent would have to pay 43.6% of all qualifying special expenses, and the second would have to pay 54.6% of those expenses.

Remember that what is being share is the net cost of an expense, in other words, the amount actually being paid. Daycare costs, for example, are usually partly subsidized by the government with certain tax deductions. If $1,000 is spent on daycare, but the government chips in a $200 tax benefit, the amount of the expense shared between the parents would be $800, not the full $1,000.

Note that the income of a parent's new spouse or partner can be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 British Columbia Supreme Court case of Baum v. Baum, the court held that the s. 7(1) consideration of the "means of the spouses" should be interpreted broadly, as including all sources of income available to the paying parent, including the income of a parent's new partner.

A calculator which will work out each parent's proportionate share of a child's special expenses is available at the end of this chapter.

Qualifying Expenses as "Special and/or Extraordinary"

Just because an expense appears to fall into one of the categories listed in s. 7 of the Guidelines does not necessarily make it a shareable "special and/or extraordinary expense." As well, just because an expense has been incurred doesn't mean it will automatically be shared. According to s. 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:

1. the necessity of the expense in relation to the child's best interests; and,
2. the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation."

In other words, if the child of a family with a low income decides to take up horseback riding and polo, the court is not likely to find that riding and polo lessons are a reasonable expense; this might not be true if the parents have a high income and play polo themselves.

Some of the expenses that the courts have found to be valid, shareable special expenses include:

• Educational expenses beyond ordinary public school costs.
• Private school fees, depending on the income of the parents and their intentions prior to separation.
• Home schooling costs.
• Tutoring costs, where the tutoring is necessary for the child's academic performance.
• The cost of post-secondary education, depending on the on the nature of the program, the child's ability to contribute to the cost, and the intentions of the parents prior to their separation.
• Extracurricular activities, depending on the nature of the activies, and the income and expectations of the parents.
• Medical and dental costs, including orthodontic work, depending on the necessity of the expense.

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The court must first decide what the payor's income is before it turns to the Guidelines tables to determine the amount of the payor's child support obligation. The Guidelines require that the court use the most up-to-date information available. Sections 15 to 20 of the Guidelines set out the rules the court must apply in determing income.

According to Rule 60D of the Supreme Court Rules of Court and Rule 4 of the Provincial (Family) Court's Rules, when an application is made for child support, both parties are usually required to make full disclosure of their financial circumstances using special forms called "Financial Statements." Each party must attach to their Financial Statements their last three years' of tax returns and Canada Revenue Agency notices of assessment (and reassessment), their most recent paystubs showing their earnings-to-date or other proof of income including WCB statements, EI statements, social services payment statements, statements of corporate earnings, and so forth. The purpose of this is to give the court and each parent enough information about both parties' incomes to determine what the payor's income is.

The basic rule of thumb is that income, for the purposes of the Guidelines, is the amount stated at line 150 of the payor's most recent tax return. Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. It can happen that the court fixes income according the average of the payor's last three years' worth of income. Most of the time, however, the payor's income is his or her current income.

The payor's "income" includes all of the income the payor has, not just income from a job. "Income" might include rental income, coporate dividends, government benefits, interest from an investment and so forth, as well as employment and self-employment income.

Government Benefits

Where a person relies on WCB, Employment Insurance, CPP or welfare this income will count towards that person's income under the Guidelines. Note that if a payor is only temporarily receiving these sorts of benefits, the payor's income may be assessed at his or her usual income. A temporary period on welfare, for example, won't entitle a payor to have his or her income assessed at what is otherwise an unusually low level.

Fluctuating Income

Where a payor's income changes from year to year, because of changing work hours or changing jobs, for example, the court may refer to the payor's income over the last three years to fix his or her income for Guidelines purposes. Depending on the circumstances, the court may choose fix the payor's income at the average of his or her last three years' of income.

Unexpected Losses and Gains

Where a payor has suffered an unexpected loss, such as a corporate capital loss or an investment loss, or enjoyed an unexpected gain, such as from the cashing-in of RRSPs or the sale of stock, the court has the discretion to decide to take this into consideration in setting the payor's income.

Court Awards

If a payor has received an award from a civil lawsuit such as for wrongful dismissal or for personal injury, the court may attribute the portion of the award allocated for lost wages to a payor's income. The whole amount of the award will not be seen as income for the purposes of the Guidelines, just the part intended to compensate for lost wages.

Windfalls

Money received from an inheritance, the sale of a house or a lottery win does not count as Guideline income. It may be an asset that the parties can divide between them, but it isn't income for the purposes of the Guidelines.

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To "impute" income means to attribute income to a payor above that which the payor claims he or she earns. Typically, someone asks the court to impute income to a payor where:

1. the payor works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns;
2. the payor has quit or been fired from his or her job;
3. the payor moves from full- to part-time work without a very good reason;
4. the payor is self-employed and either receives unpaid benefits from his or her company (like a company car, paid meals or a free cell phone), or doesn't report the full amount of money taken from the company;
5. the payor has refused to provide full and complete financial disclosure; or,
6. the payor has or will have income from a trust.

If the court decides to attribute extra income to a payor, child support will be payable at the Guidelines rate for the higher income. Qualifying special and/or extraordinary expenses will also be shared based on the higher income.

The court can decide to change a payor's income for the purposes of calculating child support in other circumtances, such as when the payor is underemployed and unemployed, is income-splitting with a new partner, or has a lower government tax rate than usual.

Underemployment and Unemployment

Section 19(1) of the Guidelines says that:

In other words, the court may decide that a payor has a different income than that which the payor says he or she has if:

1. the payor has apparently quit a job in order to avoid paying child support;
2. the payor has apparently found lower-paying work than he or she has held, or is capable of holding, in order to minimize the amount of child support he or she must pay;
3. the payor has hidden or appears to have hidden some of his or her income;
4. where there is no reason a payor cannot earn more income than he or she presently earns, or where a payor is not using resources at hand to generate income which could be used to generate income; or,
5. the payor has tried to reduce his income by claiming unreasonable deductions.

If you are going to make an argument that the payor's income should be imputed to be higher than he or she says it is, you will have to prove that one or more of the conditions described in s. 19(1) exist. In the case of under-employment or unemployment, you will also have to show that the payor has acted in bad faith, and is intentionally unemployed or underemployed. However, if a payor's under-employment or unemployment is caused by the his or her child care responsibilities, the court will not usually impute income to the payor.

It is not enough merely to argue that one of these conditions exist, you have to be able to provide evidence that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, Nahu v. Chertkow, in determining whether a payor is intentionally underemployed or unemployed:

1. the payor's education, training and work experience;
2. the payor's previous earnings and past borrowing of funds during unemployment;
3. the payor's work history;
4. the payor's spending patterns and lifestyle;
5. the payor's efforts to upgrade education and work qualifications;
6. the nature and quality of attempts to obtain employment; and,
7. any evidence that the underemployment or unemployment is motivated by ill-will towards the recipient.

If something along these lines can be proven, the court may infer that a payor is intentionally underemployed or unemployed and may impute income to the payor to insure that the children benefit from the highest amount of support possible.

An important aspect of underemployment has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 British Columbia Supreme Court case of Hanson v. Hanson, the court had this to say on the subject:

"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...

"2. When imputing income on the basis of intentional underemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as the availability of work, freedom to relocate and other obligations.

"3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be earned on the job. ... [C]ourts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.

"4. Persistence in [poorly paid] employment may entitle the court to impute income.

"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.

"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."

"Grossing Up" Income

Section 19(1) of the Guidelines also provides that:

Under these sections of the Guidelines, payors who have a lower income tax obligation than usual, such as some First Nations persons, who may pay no federal tax, or persons who live outside of Canada and have lower tax rate, can have their income "grossed up" to reflect this tax advantage when child support is determined.

The "grossing up" process essentially involves figuring out the amount of money the payor would have to earn to have the same after-tax income as he or she has at the normal tax rates for residents of British Columbia. This will result in income being imputed to the payor for the purposes of calculating child support, with a consequent increase in the amount of child support which will be awarded.

The idea behind "grossing up" someone's income is a bit complex. Essentially, the idea is to ensure that the person with the unusually low tax burden pays a fair amount of support by having his or her income assessed at normal BC standards. Think of it like this:

Say Mr. A earns $100,000 per year. As a BC resident, Mr. A pays income tax at, for example, 40%. This means that Mr. A's net income is $60,000 per year.

Mr. B also earns $100,000 per year. Mr. B, on the other hand, lives in Texas, and has an income tax rate of, for example, 25%. This means that Mr. B's net income is $75,000 per year.

In this example, income for the purposes of the Guidelines would normally be calculated for both Mr. A and Mr. B at a gross income of $100,000. In reality, though, Mr. A has a lot less money after income taxes are paid than Mr. B does. Mr. B actually has a lot more money than Mr. A, and ought to pay child support based on this additional money.

Mr. B's income would be "grossed up" to figure out what income he would have to earn in BC to have an after tax income of $75,000. Since he would pay income tax at a rate of 40% here, the court would consider Mr. B to have a gross income of $125,000 for the purposes of child support, since tax of 40% on a gross income of $125,000 leaves a net income of $75,000.

Mr. A and Mr. B both have incomes of $100,000 per year. Mr. A will pay his base amount of support at that income, but Mr. B will pay at a "grossed up" income to reflect what he would have to earn in BC to have his net, after-tax income of $75,000.

Grossing up a payor's income can be a bit tricky, and requires a sound knowledge of the income tax laws of different countries. If you have a problem in this area, you should consider retaining a lawyer to help you.

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This segement discusses the impact that the income of a payor's new spouse or partner can have on the payor's child support obligations, and when that additional income may be taken into account.

Parents usually move on with their lives after the relationship which produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationships will impact on the parent's obligation to pay child support. The parent will be concerned that the new partner's income be added to that of the parent in determining the amount of support to be paid. The new partner will want to know whether he or she is on the hook and must also contribute to supporting the child.

Basic Child Support

The income of a parent's new partner is not relevant to the payment of child support. By the same token, the person a parent enters into a new relationship with is, generally, not liable to pay support. The new partner will not "inherit" the child support obligation and the other parent won't be able to pursue the new partner for additional support.

For the purposes of calculating the base amount of child support a parent must pay — that is, the parent's basic obligation under the Child Support Guidelines, exclusive of special and/or extraordinary expenses — the court looks only at the parent's income. The income of the new partner is not taken into account.

Undue Hardship

Section 10 of the Guidelines allows a parent to argue that the base amount of support set out in the Guidelines is too low or too high and would cause "undue hardship" if he or she had to pay that amount. Payors generally claim that the base amount is too high, while recipients argue that it is too low. (This exception to the Guidelines is discussed more thoroughly in the next chapter.)

If undue hardship is claimed, the court will look at the standard of living of each parent's household, rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support, it just means that his or her income will be added to the parent's income to see whether the base amount of support payable is unduly high or low.

Incomes in Excess of $150,000

The tables provided in the Child Support Guidelines set out the amount of support owing by payors who earn up to $150,000 per year. The Guidelines provide a mathematical forumla for figuring out what parents earning more than $150,000 must pay, while payors earning less than $6,900 pay nothing.

Section 4 of the Guidelines deals with parents who earn more than $150,000 each year. Under this section, the income (or lack of income) of a parent's new partner can be taken into account in deciding whether the formula gives a fair result. (The calculation of support owing by parents with incomes in excess of $150,000 is discussed in more detail in the following chapter.)

Section 4(b)(ii) of the Guidelines says that when considering the amount payable above the basic amount for a payor whose annual income is $150,000, the court should apply the formula but take into account:

In other words, the income of a new partner can be taken into account under the general heading of "financial ability" in determining whether the formula amount is fair.

Special Expenses

Section 7 of the Guidelines allows for sharing of the children's "special and/or extraordinary" between the parents, as described above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into account, among other things:

A parent's new partner's income can be taken into consideration under the heading of the "means of the spouses," which is exactly what the court decided in the 2000 British Columbia Supreme Court case of Baum v. Baum. In that decision, the court held that the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the income of his or her new partner.

Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income.

The Death of a Paying Parent

A number of visitors to this website have asked whether they will have any responsibility to make child support payments if their partner, a parent under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.

While that is a good general rule, and one you can probably rely on, it is possible but unlikely that a claim could be made against the new partner as a "step-parent" of the child under the Family Relations Act. The act says that all "parents" are required to support their children, but s. 1 defines parents as including step-parents who have contributed to the support of a child for a period in excess of one year. In otherwords, a new partner who marries a paying parent may have an obligation if he or she has contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.

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Certain changes to the Child Support Guidelines took effect on 1 May 2006. According to the announcement in the Canada Gazette, the changes were "intended to improve the predictability, consistency and fairness" of the Guidelines.

The Canada Gazette summary can be found at:

http://canadagazette.gc.ca/partI/2005/20051029/html/regle4-e.html

The following are the highlights of the changes.

Revised Support Tables

The tables for each province have been revised substantially. In British Columbia, the table amounts have gone up by between 9% and 19%, with payors with lower incomes seeing the lesser increase, and in some cases an actual reduction, and payors with higher incomes seeing the greater increase.

Special and/or Extraordinary Expenses

The legal test for whether a child's expense qualifies as an "extraordinary" expense under s. 7 of the Guidelines has been clarified.

In a new subsection, s. 7(1.1), the court must first find that a proposed expense is within the means of the parent seeking payment of that expense. If it is, then the court must look at five factors to decide whether the expense qualifies as extraordinary:

1. the amount of the expense in relation to the income of the spouse requesting the amount (including the child support amount);
2. the nature and number of the educational programs and extracurricular activities;
3. any special needs and talents of the child or children;
4. the overall costs of the programs and activities; and,
5. any other similar factor that the court considers relevant.

Special expenses are discussed in the segment above on Special and/or Extraordinary Expenses.

Grossing Down Income

The Guidelines allow the court to "gross up" the income of payors who live outside of Canada and enjoy a lower personal income tax rate than they would if they lived here. The Guidelines now include a "grossing down" provision, to lower the income of payors who live in jurisdictions with income tax rates higher than Canada.

Grossing up income is discussed in the segment above on Imputing Income.

Undue Hardship

The Guidelines allow the court to impose a child support order which is higher or lower than what the tables require if the payor or recipient can show that payment of the tables about would cause "undue hardship" under s. 10 of the Guidelines. When the court is looking at a claim for undue hardship, it is required to compare the standards of living of the two households. The amendments give the court a revised formula for comparing household standards of living.

Undue hardship is an exception to the Guidelines discussed in the next chapter.

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An order for child support typically has the following elements:

1. a statement of the names and birthdates of the children for whom support will be paid;
2. a declaration of the payor's income;
3. an order as to the Guidelines amount payable;
4. an order with respect to the exchange of income information; and,
5. a statement of the date on which child support will no longer be owed by the payor.

These elements read as follows in a typical order made under the Divorce Act:

Under the Family Relations Act, these clauses would read like this:

The point of the last clause of each version of this sample order is to require the payor to annually provide evidence of his or her income to the recipient so that both parties can decided whether an increase or a decrease in the amount payable is appropriate.

Where the parties share true joint custody of the children, the amount paid is dependant on both parties' incomes. The same is true where special expenses are being contributed to; the proportion of those expenses each party will pay depends on both of their incomes. In cases like that, this last clause should be changed to require both parents to exchange their income information on an annual basis, not just the payor.

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This calculator is for the British Columbia Child Support Guidelines tables, as amended on 1 May 2006. It does not apply to payors who live outside the province.

There are a few basic things about the Guidelines that you should be aware of. Firstly, support is only payable when a payor's annual income is at or above $9,000 per year; below this level, child support payments are zero. Secondly, support caps out at six children; the amount of child support payable for more than six children is the amount for six children.

How to Use the Calculator

There are only a few things you should know about this calculator:

• It starts at an income of $9,000.
• It only calculates support in whole increments of $1,000 for incomes of less than $150,000; if you've entered $22,300 as your income, for example, it will report the support you will owe if you earned $22,000. (To get a more accurate picture, using this example, you would do two calculations: one for an income of $22,000, and another for an income of $23,000. The amount owing will be about a third of the difference between the two results since the payor's income is $22,300.)
• It calculates support accurately for incomes in excess of $150,000.

The calculator will open in a new window. You will need to make the new window as big as possible on your screen. If parts of the calculator is still getting cut off, set your screen display to 1024 by 768 pixels. To print a page, set your printer to print in "landscape" format.

The Calculator

The information you need to have for this calculator is: the payor's gross income and the number of children support is being paid for.

Click here to use the calculator. (To calculate child support under the old Child Support Guidelines tables that were in force before 1 May 2006, click here.)

Child Support Infoline

The provincial government operates the BC Child Support Infoline which offers free information about child support and the child support tables. Contact them at:

Lower Mainland: 604-660-2192
Outside the Lower Mainland: 888-216-2211

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This calculator will work out the proportionate share of children's special expenses payable by each parent. It applies to agreements or orders for the payment of special expenses throughout Canada.

How to Use the Calculator

The calculator will open in a new window. You will need to make the new window as big as possible on your screen. If parts of the calculator is still getting cut off, set your screen display to 1024 by 768 pixels. To print a page, set your printer to print in "landscape" format.

The Calculator

The information you need to have for this calculator is: the payor's gross income, the recipient's gross income, and the amount of spousal support paid by the payor to the recipient each month, if any.

Click here to use the calculator.

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