By Suzanne Fleming of Kirk Montoute Dawson LLP posted in Child Support on Tuesday, February 12, 2019.
If you or your former spouse are high income earners and share children, the following scenarios may be familiar when calculating child support:
Scenario 1: You and your spouse have recently separated and share dsdependent children. You have been a high-income earner for several years, while your spouse has not. You calculate child support based on your income and the amount appears to grossly exceed the children’s reasonable needs. What are your options?
Scenario 2: You and your spouse have recently separated and share dependent children. Your spouse has been a high-income earner for several years while you have not. Child support is calculated based on your spouse’s income. Your spouse argues the amount exceeds the Children’s reasonable needs, but you disagree and think it is appropriate. What happens next?
Pursuant to the Canadian Federal Child Support Guidelines (“the Guidelines”), the quantum of child support payable is based on a “table amount”. The “table amount” is calculated using the following information:
i. a payor’s Line 150 income; and
ii. the number of children under the age of majority.
Special circumstances arise with respect to the table amount when a payor’s Line 150 income exceeds $150,000. Particularly, the Court has discretion under section 4 of the Guidelines to increase or decrease the table amount of child support payable on the portion of the payor’s income that exceeds $150,000.
The test for departing from the table amount of child support when a payor’s income exceeds $150,000 is found in the Supreme Court of Canada case of Francis v. Baker and later reaffirmed in the Queen’s Bench of Alberta case of Ewing v. Ewing:
“The party seeking the deviation must provide enough evidence so as to ‘raise a concern’ that awarding the table amount would be inappropriate. This evidence must be ‘clear and compelling’ and include an accurate picture of the Child’s condition, means, needs and circumstances.”
In other words, if you disagree with the table amount, it is your responsibility to convince the Court why it is inappropriate. In the event the Court is not satisfied with the evidence provided, you and your former spouse may be asked to complete expense budgets with respect to the child(ren) to present a clearer picture of their needs. Ultimately, it is the Court’s discretion whether to increase/decrease the table amount, or to not interfere with it at all.
Federal Child Support Guidelines S.C. 1997, c.1, s.4
Ewing v. Ewing, 2009 ABCA 227 at para. 46
Ewing v. Ewing, supra at para 46