20 February 2010

Child Support and the Income of Payors

G.H. from Vancouver sent me an email with a question that has an interesting answer:
"I understand the application of the child support guidelines and these have been built into my divorce order. I do not, however, understand the logic of having the formula based only on the payor income and number of children, and not the payee's income. ... My ex and I make about the same income, we split assets [and] we have joint custody ... yet her income is irrelevant to the size of my payment. I just can't see the logic of that and in situations like ours, it seems extremely inequitable."
To understand where the Child Support Guidelines are coming from, you have to understand how child support was calculated before the Guidelines came into force in 1997.

Before the Guidelines, the amount of child support paid was based on the children's needs, the amount of money necessary to meet their basic living expenses, and on the parents' means, the amount of disposable income available to the parents to meet those needs. This resulted in a budgeting exercise that was often expensive, always acrimonious and sometimes capricious.

The Child Support Guidelines were intended to address these problems, and they say as much at s. 1:
The objectives of these Guidelines are:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;
(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;
(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and
(d) to ensure consistent treatment of spouses and children who are in similar circumstances.
The Guidelines try to achieve these goals by establishing a scheme for the determination of child support which is mandatory throughout Canada. Most importantly, the Guidelines set out a series of tables for each province which say how much support should be paid based on only two factors: the number of children support is being paid for, and the income of the person paying support.

The choice of these factors and the amounts in the child support tables are, to some extent, arbitrary. Certainly other factors could have been picked and different figures chosen; the Guidelines could equally have determined support using a some sort of calculation rather than tables. It isn't particularly obvious to me, however, that any other arrangement would be better than what we wound up with.

Basing the amount of child support on figures set out in tables stops people from engaging in bitter and costly debates about need and means. The tables amounts are presumed to be a complete indemnification of the payor's obligation, and in addition to preventing arguments about that, they prevent arguments about how the recipient has chosen to spend the support received. Indexing the tables to the payor's income means that only one person's income needs to be analyzed and eliminates arguments about the adequacy of the recipient's contributions to the costs of the children's upkeep.

Whether these are good and appropriate objects and values is a better subject for politicians and social policy theorists. The end result, I think, has been a fairer, more predictable and less expensive means of determining child support for most, but certainly not all, parents, and I would be just as happy with any other system of child support which achieved the same effect.

In fairness, there are occasions when the rigid application of the Guidelines works an injustice and relief is available to remedy that in the "undue hardship" provisions of s. 10 of the Guidelines. As well, there are a number of circumstances in which the recipient's income is a factor applied in the calculation of support, including where:
  1. the parents have "shared custody" as defined by s. 9;
  2. custody of the children is "split," under s. 8;
  3. the child is over the age of majority, under s. 3(2)(b);
  4. the payor's income is over $150,000 per year, under s. 4; and,
  5. the parents are required to the child's special expenses pursuant to s. 7.
At the end of the day, the arbitrariness of the Guidelines seems to me to work well for most of the people most of the time, although it's entirely possible that another system would work better. The Department of Justice likely has some of the background and research papers for the Guidelines available, and there will be Hansard transcripts for any Parliament discussions on the subject.

2 comments:

  1. Hi JP, I've been looking for information from you about child support in shared custody situations and haven't found much beyond the click law post on exceptions to the guidelines. I've been reading Contino v. Contino and trying to understand if a new spouse's income should be considered part of a parent's financial means considering the following points raised in Contino: Secure a similar standard of living in the two households. Take into account the increased costs of shared custody by referring to the respective means of the parents to suggest how this should be done. Any thoughts? Your click law blog suggests not to look at new spouses' incomes, but I can't understand how to accurately apply section 9 without considering this as part of a parent's means.

    ReplyDelete
    Replies
    1. The page "Child Support Guidelines" has a discussion about the income of new partners here:

      http://wiki.clicklaw.bc.ca/index.php/Child_Support_Guidelines#Child_support_and_parents.27_new_partners

      In general, new partners' incomes are not considered in the calculation of child support except in relation to claims for: relief from the guidelines because of undue hardship, special expenses, child support paid by someone with an income in excess of $150,000.

      There are two cases, one called Baum v Baum which is linked to in the above and another which I don't recall, that say that any time the guidelines require the court to consider a party's "means," the court should consider the party's new partner's income as a part of the party's means. However, the case is not widely followed, and in general, except for the exceptions I've outlines, the income of new partners is not relevant.

      If I can remember the name of the second case, I'll post the name and a link in a further reply to your comment.

      Delete