Category: Blog

Base, or table, child support is based on the payer’s income. As the payer’s income goes up, the table amount keeps going up along with it – even for high income earners. That can result in the table amount of support being tens of thousands of dollars in child support a month. Will Family Court Judges order more child support than a parent could ever spend on the child? This blog looks at some factors the court may consider in setting child support for high-income earners.

To start, Canadian courts have long held that child support is the right of the child; both parents have an obligation to financially support their child, based on their income, and this obligation cannot be waived by the payee parent and is not destroyed by the breakdown of the parents’ relationship. Moreover, child support should, as much as reasonably possible, provide children with the same standard of living that they were accustomed to when their parents were together.[1]

However, there is a limit to how much support a child needs and there are some factors that courts are willing to consider adjusting the amount of child support. But there are also factors that judges will not consider and raising them will just get a parent on the judges’ bad side.

The Starting Point: What the Child Support Guidelines Say About High Incomes

The first step to calculating the child support owed by you or your child’s parent is to determine the proper “table amount.” These amounts are prescribed by regulation under the Federal Child Support Guidelines and the Ontario Child Support Guidelines. The amounts are the same under both tables; however, if you are applying for child support under section 15.1 of the Divorce Act, you should refer to the federal guidelines and if you are applying for child support under section 33 of the Family Law Act, you should refer to the provincial guidelines. You can only apply under the Divorce Act if you were married to your child’s parent; otherwise, you must apply under the Family Law Act.

The regulations provide a set amount of child support depending on the payor parent’s income and the number of children that the payor parent is obligated to support. The highest income on the table is $150,000 but that does not mean the tables stop there. At the end of every table, there is a percentage of the payor’s income that should be paid as child support. That percentage goes up with the number of children. With that percentage, the amount of child support continues to grow indefinitely as the payor’s income goes up. Even if the payor’s income is in the billions of dollars, the formula gives a table amount.  For an income over a billion dollars per year, the child support would be over a million dollars each year.

Section 4 of both the federal and provincial guidelines explain the procedure for determining the child support obligation for a payor parent who earns more than $150,000:

Incomes over $150,000

4. Where the income of the parent or spouse against whom an order for the support of a child is sought is over $150,000, the amount of an order for the support of a child is,

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the parent’s or spouse’s income, the amount set out in the table for the number of children under the age of majority to whom the order relates,

(ii) in respect of the balance of the parent’s or spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each parent or spouse to contribute to the support of the children, and

(iii) the amount, if any, determined under section 7. 

Section 3 of the federal and provincial guidelines provides that:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

As such, there are two options to determine the amount of child support owed by payor parents who earn over $150,000:

1. The Table Amount

For a payor parent who earns more than $150,000, the table amount would be the set amount for $150,000 plus a percentage of any of the payor parent’s income over $150,000. For example, take a payor parent who has two children and earns $400,000. Under the federal and provincial guidelines, the base amount for two children for the first $150,000 of income, as of the writing of this article, is $2,077 per month. Additionally, the payor parent owes a prescribed percentage of any of their income over $150,000. Here, the prescribed 1.2% of the remaining $250,000 would be $3,000. As such, according to the table, the payor parent would owe $5,077 per month for their two children.

2. An Amount the Court Considers Appropriate

However, per section 4(b) of the federal and provincial guidelines, these amounts may not always be appropriate and can be varied by the courts if necessary. To do so, the payor parent must establish that the amount is in excess of the child’s reasonable needs that it is inappropriate or unsuitable.

If so, the payor parent will be responsible for paying the table amount, depending on the number of children, for their first $150,000 of income, and an additional amount which the court finds appropriate. Here, courts will consider:

1. the condition, means, needs and other circumstances of the children who are entitled to support; and
2. the financial ability of each parent or spouse to contribute to the support of the children.[2]

When Can Child Support Be Varied Under Section 4?

In general, courts are highly reluctant to depart from the table amount of child support. Likewise, there is a strong presumption towards using the table amount for all incomes over $150,000. This presumption can only be rebutted by the payor spouse with clear and compelling evidence.[3] The closer that a payor parent’s income is to $150,000, the more likely it is that the table amount will be upheld.[4]

In general, the table amount will not be varied under section 4 for the following reasons:

1.      Lower Child Support Payments Made to Other Children of the Payor

In Pakka v Nygard, the payor parent had an income of $2.2 million, owed $15,091 per month in child support per the table amount, and was only paying $3,000.[5] The payor had several children with different women; some lived in Canada and some in the United States. In an effort to treat all of his children fairly, he sought to pay only $3,000 in support for each child. Justice Kitelely rejected this argument; parents cannot unilaterally determine what is “fair and equal treatment” and the payor was acting contrary to the laws of Ontario.[6]

2.      The Proposed Budget for the Child is Lower than the Table Amount and Includes a High Amount of Discretionary Spending

The fact that the table amounts exceed the budget prepared by the payee parent is not determinative and courts have awarded table amounts which allow for a large amount of discretionary spending.

In Pakka, as discussed above, the payee parent prepared a budget for the child of $6,545 per month, and was awarded the full table amount of $15,091, resulting in $8,000 a month in discretionary spending. Justice Kiteley found that the needs of the child, as expressed in the budget, was only one factor in the court’s analysis and the size of the table amount is not a sufficient reason to vary it.[7] Also relevant to this case was the $300,000 that the payor owed in child support arrears.

In cases involving very wealthy payor parents, reasonable amounts of child support often include high amounts of discretionary spending.[8] Moreover, it is reasonable for the payee parent to incur similar discretionary expenses as the payor parent to ensure that the child enjoys a similar standard of living in both households.[9]

3.      The Payor Has High Debts

Courts are generally unsympathetic to payors who attempt to vary the table amount based on their debt. In Sordi v Sordi, the payor parent argued that it would be unconscionable for him to pay the table amount of child support for his full income because of his high debt load. If the children’s needs could not be met, then the payee should move to cheaper accommodations or sell the former matrimonial home. At the time of the trial, the payor had spent $1.5 million in legal and expert fees; both Justice Timms and the payee parent considered this debt to be self-imposed and unnecessary.[10]

In Ridley v DeRose, the payor parent included a $6,000 loan repayment to his mother in his monthly expenses. Justice Tobin ruled that the payor had not established that the table amount was inappropriate; he could support himself, his wife and her children, accumulate assets, pay an “apparently arbitrary amount of the monthly debt payment”, and has discretionary spending.[11]

4.      The Payor has a Higher Cost of Living

In McGouran v Connelly, Justice Feldman rejected the payor parent’s argument that the higher costs of living in the United Kingdom compared to Canada made the table amounts in appropriate. He recognized the slippery slope of such a recognition:

…if one were to begin to recognize and adjust for discrepancies in the cost of living just to calculate income, such discrepancies would not be limited to countries, but could extend to cities or even smaller areas, and would require extensive evidence in each case. The inquiry would become cumbersome, expensive and potentially unworkable.[12]

5.      When the Payor Parent Has an Uncertain Income

In Simon v Simon, the Court of Appeal considered whether the table amount should be ordered for a professional hockey player, who earned $1.4 million, but worked in a career characterized by uncertainty and risk. Justice MacPherson declined to vary the amount and held that child support payments should not be varied in anticipation of a decreased future income.[13] However, the table amount will not be retroactively awarded when the payor parent has a single year of extraordinarily high income which will likely not be repeated.[14]

However, the table amount will likely be varied in the following circumstances:

1.      When the Table Amount Constitutes a Wealth Transfer Between Parents

Francis states that “…at a certain amount, support payments will meet even a wealthy child’s reasonable needs” and that table amounts can be “so in excess of the children’s reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousal support.”[15]

Courts have often found that the table amounts of child support constitutes a wealth transfer when the payee parent includes in their proposed budget funds for future expenses which do not meet the current needs of the child.[16]

2.      In Accordance with the Family’s Established Lifestyle and Pattern of Expenditures

The purpose of the provincial and federal Guidelines is to establish fair levels of support in a predictable and consistent manner and to ensure that the dissolution of the parents’ relationship affects the children as little as possible.[17] As such, the established lifestyle and pattern of expenditures of the family unit prior to the separation is a relevant consideration.

In R v R, the payor parent earned $4.1 million, and the payee parent sought the table amount of $65,000 for the parties’ four children. The Court of Appeal only awarded $32,000 due to the family’s modest lifestyle during the parties’ relationship. Justice Laskin held that:

If the children’s reasonable needs, including reasonable discretionary expenditures, are being met by the parties’ pre-separation lifestyle — even if that lifestyle is comparatively modest — and the paying parent’s income does not increase after separation, I do not think it is for the court to award child support that reflects a different, more lavish lifestyle. The Guidelines are meant to ensure fair levels of support, but to repeat Bastarache J.’s words in Francis v. Baker, also to ensure “that a divorce will affect the children as little as possible”.[18]

3.      When the Payee Parent Seeks a Higher Standard of Living

When the payor parent can prove that a child’s needs have been adequately met with a lower amount of child support, then the courts are more likely to stray from the higher table amount. However, Justice Cleghorn held that the payee parent cannot use the table child support amounts to make the child’s standard of living higher in their home than the standard of living in their payor parent’s home.[19]

This does not mean that child support payments can never be used to increase the child’s standard of living; courts have allowed this when the payor parent’s income increases dramatically post-separation. In R, the payor parent earned $1.4 million during the relationship, and his income skyrocketed to $4.1 million post-relationship. Justice Laskin found that in these cases, the children are entitled to benefit from their parent’s increase in income:

It is one thing for the family to live modestly and save money while together; it is quite another, and seemingly unfair, for the paying parent to hold his children to the family’s pre-separation lifestyle while saving the increase in his post-separation income, but now for his benefit alone.[20]

Even in this case, as noted above, the Court of Appeal only ordered half of the table amount of child support. This also does not apply when the payor parent’s increase in income is only temporary; the court rejected a payee parent’s application for $650,000 a year in child support (or $55,000 a month) for the payor parent’s one-time annual income of $7.5 million, followed by $445,000 and $236,000 in subsequent years. Here, the court found that the payee parent would not be able to sustain the child’s higher standard of living on the payor parent’s dwindling income.[21]

It may seem that some of these considerations are contradictory. When parent’s incomes are high, or complex, child support issues can be complicated. It is no longer a case of taking a figure off a tax return and plugging it into an online calculator or cross-referencing it on a child support table.  There are additional considerations and opportunities that make it worthwhile to speak to an experienced family law lawyer.

If you have more questions about your family law matter, please contact Certified Specialist in Family Law, John P. Schuman at Devry Smith Frank LLP at 416-446-5080 or john.schuman@devrylaw.ca.

This blog was co-authored by law student, Leslie Haddock.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

[1] For example, see DBS v SRG, 2006 SCC 37 at para 38.

[2] See sections 4(b) of the Federal Child Support Guidelines, SOR/97-175 and the Child Support Guidelines, O Reg 391/97.

[3] Francis v Baker, 1999 CanLII 659 (SCC) at paras 42-43 [Francis].

[4] Deslauriers v Pommainville, 2017 ONSC 3162 at para 77 [Deslauriers].

[5] Pakka v Nygard, 2002 CanLII 62431 (ON SC).

[6] Ibid at para 51.

[7] Ibid at para 66.

[8] Tauber v Tauber, 2000 CanLII 5747 (ON CA) at para 40; Jung v Johnson, 2015 ONSC 6734 at para 30 [Jung].

[9] Deslauriers, supra note 4 at paras 59 and 81-82.

[10] Sordi v Sordi, 2010 ONSC 2344 at paras 226-227.

[11] Ridley v DeRose, 2017 ONCJ 877 (CanLII) at paras 162-163.

[12] McGouran v Connelly, 2006 CanLII 7668 (ON CA) at para 29.

[13] Simon v Simon, 1999 CanLII 3818 (ON CA) at para 27.

[14] Tamo v Husband, 2023 ONCJ 233 (CanLII) where the payor parent earned $7.5 million in one year due to the exercise of stock options and sale of shares [Tamo].

[15] Francis, supra note 3 at para 41.

[16] Tamo, supra note 14 at para 73; Jung, supra note 8 at para 30.

[17] Francis, supra note 3 at para 39.

[18] R v R, 2002 CanLII 41875 (ON CA) at para 51 [R].

[19] Tamo, supra note 14 at para 63.

[20] R, supra note 18 at paras 57-58.

[21] Tamo, supra note 14 at para 63.

Defining a Spouse Under the Family Law Act

Under the Family Law Act, RSO 1990, c F3 (FLA) a spouse is defined as two persons who are legally married unless otherwise noted. Common law partners are considered a spouse under certain sections of the FLA and are defined as two persons who are not married to each other and have cohabited for a period of not less than three years. However, this is not the case when awarding property rights. Under the FLA, common law partners are not entitled to the same property rights as married spouses. More specifically, common law partners are not entitled to the equalization of net family properties.

Equalization of Net Family Properties

Under the FLA, when a divorce is granted or spouses separate with no reasonable prospect of resuming cohabitation, the spouse whose net family property is less than the other’s is entitled to one-half of the difference between them. As discussed above, in Ontario, this right is only available for married spouses. Common law partners are not awarded these rights and must establish an interest in property when seeking to equalize property. This process can be quite complicated.

The Push for Common Law Partners’ Entitlement

Over the years, as common law is becoming more and more common, there has been a push for common law partners to be entitled to the same rights as married spouses in Ontario. As mentioned above, there is a process that common law partners can take in order to establish a property right. As a common law partner, you would need to make a claim for a constructive trust if you contributed to the value of an asset and believe your partner would be unjustly enriched if they were to retain the full value of this asset. This process can be complex and relies on the court process, therefore creating a lengthy delay in gaining your property entitlement.

British Columbia has re-visited their old family rules and now award all of the same rights to common law partners as married spouses. So why not Ontario? Until our FLA re-visits the definition of spouse under the property regime, if you are in a common law relationship, it is important that you understand that you are not entitled to the same property rights as married spouses. For more information on this issue or other Family Law topics, please contact Kenna Bromley at Devry Smith Frank LLP at (249) 888-6641 or kenna.bromley@devrylaw.ca

This blog was co-authored by law student Samantha Lawr.

We all know that children suffer the most in family law proceedings. However, giving weight to a child’s preferences in the proceedings can give them a sense of autonomy and control of the situation. As a result, the provincial Children’s Law Reform Act and the federal Divorce Act both emphasize that courts must consider the views and preferences of the child when it comes to determining their best interests, in accordance with the child’s age and maturity.^[1] 

This is not an easy task; the Ontario Court of Appeal acknowledged that:

It has always been a challenge for family law courts to find a way for children to express their views without exposing them to further trauma or causing more damage to the family. Those who work in the family law system are all too aware that children remain part of the family long after a judicial decision is reached. The process of determining the child’s true wishes and preferences requires delicacy, for to undertake the process without expertise may further hurt the child and fracture family relationships.^[2]

The courts have approached this challenge in various ways. This article will discuss one such method: Voice of the Child Reports.

What is a Voice of the Child Report?

A Voice of the Child Report (VOC) is a short report written by an expert clinician or lawyer for the court which summarizes a child’s views, preferences, and statements on a particular issue in a determination of decision-making responsibility or parenting time.

This report is often only completed for children over the age of seven, as it can be difficult for children under that age to meaningfully communicate their views. A VOC does not include:

• formal interviews of the parents;
• observation visits of the child and parents;
• gathering of information from third parties, such as teachers and family doctors;
• disclosure meetings; or
• recommendations

Courts have generally been receptive of this new measure. VOCs are considered to be “an effective and efficient process for ensuring the right of the child to participate in proceedings that affect them and for fulfilling the court’s mandate to consider their views and preferences.”^[3] Aside from testifying in court or speaking directly to a judge in private, which can be intimidating and traumatizing for a child, VOCs are one of the few methods which allow courts to receive direct information on the child’s preferences.^[4]

A clinician of the Office of the Children’s Lawyer (OCL) may also complete a more detailed Children’s Lawyer Report, or a s. 112 assessment.^[5] In this report, the clinician is required to meet with the parents and child; observe the child with the parent; contact other adults in the child’s life, like teachers, doctors, day care workers, and therapists; and write a report with details of their investigation and recommendations. This report is more time-consuming and expensive than a VOC and takes approximately 90 to 120 days to complete, compared to 30 days for a VOC.

How do I Obtain a VOC?

To obtain a VOC from the OCL, you must complete the following steps:

1. Request from the Court

You must first obtain a court order requesting that the OCL intervene and provide a VOC. The court will define the issues to be addressed in the report via a Voice of the Child Endorsement Form.

2. Complete Intake Form

Upon receiving the order, the parties must complete a Voice of the Child Intake Form and send it to the OCL within one business day of the order. The intake form can be emailed to OCL.LegalDocuments@ontario.ca or faxed to 416-314-8050. If the parties complete the intake form immediately after the order is made before leaving the courthouse, then the court staff can send the court order and completed intake form to the OCL together.

3. Acceptance of Case by OCL

When the OCL receives the court order and intake form, they must decide whether to accept or refuse the case. The OCL will notify the parties and the referring judge of their decision in writing. If accepted, an OCL clinician will be assigned to the case.
If the OCL refuses the case, then you can still obtain a VOC by retaining your own expert or children’s lawyer and paying for the report yourself.

4. Contact from Clinician

After receiving the assignment, the clinician will contact the parties involved to introduce themselves, describe the VOC process, request a copy of all relevant court documents and endorsements, gather information about the referral, and arrange a time and place to interview the child.

5. Interviews with Child

The child will attend two interviews with the clinician on two separate days. At the end of each interview, the clinician will review the child’s statements with them to ensure that they accurately reflect their views.

6. Notification of Final Report

The clinician will inform the parties when the interviews have been completed. The VOC will be filed with the court and sent to the parties within 30 days of the clinician’s initial involvement with the case. After the report is completed, OCL’s involvement with the case will end.

Who Can Write a VOC?

If the OCL agreed to be involved in your case, then the VOC will be written by an OCL expert. The OCL expert can be a clinician or a children’s lawyer with expertise in the areas of child development and children in families with conflict.

You can also hire a non-OCL clinician to write a VOC for you. Here, it is important that the writer is a neutral and non-biased third party. Courts have rejected the parties’ choices to write a VOC when they had a pre-existing relationship with the child, a professional relationship with one of the parties, or had already rendered opinions or recommendations in the proceedings.^[6]

Furthermore, a non-clinician should ideally be a children’s lawyer sitting on the personal rights panel for the OCL. In Stefanska v Chyzynski,^[7] after the OCL declined involvement due to lack of resources, the mother retained a lawyer to write the report. This lawyer only practiced family law in a limited capacity, was not an expert in child psychology, and had never prepared a VOC before. Her expertise was limited to a three-hour consultation from a child and family therapist who had prepared VOCs before. Justice Horkins emphasized that it was preferable that the VOC was prepared by a trained professional. However, as the report is only a “vehicle to present the views of the children to the Court without any evaluation”, he reluctantly admitted the report.^[8] Despite this ruling, if you want your VOC to carry more weight, it is best to do your research and retain a professional with experience in preparing VOCs.

When Should I get a VOC for My Child?

A VOC may be appropriate in the following circumstances:

6. 6. • When your child is an appropriate age. VOCs are generally not available for children under the age of seven, although this cut-off is not strictly enforced and is highly dependent on the individual child’s maturity.^[9] A VOC can be created so long as the child is capable of conveying their preferences in a meaningful way. VOCs also may not be as useful for older teenagers, as courts are often reluctant to make parenting time decisions for children close to the age of majority.^[10]
      • When you and your former partner disagree about your child’s preferences. VOCs allow parents to get a better understanding of their child’s views and preferences. This can help resolve issues surrounding parenting time and decision-making responsibility earlier in the litigation process, which saves time, costs, and stress for everyone involved.
      • When your child wants to express their views. A VOC will be much more impactful if your child is interested in communicating their views and preferences to the writer. As noted above, this experience may give your child a sense of control and autonomy in the situation without feeling like they’re taking a parent’s side.

While VOCs may be less useful in cases where there are issues of parental alienation^[11] or allegations of abuse or neglect, for the vast majority of parenting and decision-making disputes, a VOC is an excellent way for your child to feel heard and acknowledged in the court process.

If you have questions about obtaining a VOC or another other family law matter, please visit our website or contact Jillian C. Bowman from Devry Smith Frank LLP at 249-888-4639 or Jillian.Bowman@devrylaw.ca.

This blog was co-authored by law student, Leslie Haddock.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

^[1] For example, see Children’s Law Reform Act, RSO 1990, c C12, ss 24(3)(e) and 64(1) and Divorce Act, s 16(3)(e).

^[2] Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at para 65.

^[3] Byers v Byers, 2023 ONSC 297 at para 21 [Byers].

^[4] Ibid at para 22.

^[5] This assessment is provided for in the Courts of Justice Act, RSO 1990, c C43, s 112(1).

^[6] See Svirsky v Svirsky, 2013 ONSC 5564 at para 27 and Religa v Nesrallah, 2017 ONSC 1491 at paras 16-18.

^[7] Stefanska v Chyzynski, 2020 ONSC 3048.

^[8] Ibid at para 93.

^[9] See Byers, supra note 3 at para 25, where Justice Tellier ordered a VOC for a six-year old child.

^[10] In Medjuck v Medjuck, 2019 ONSC 3254 at paras 28-29, Justice Kristjanson refused to order a VOC for a seventeen-year old who chose to reside with his father and have no contact with his mother.

^[11] For instance, see ibid at paras 31-32 and Canepa v Canepa, 2018 ONSC 5154 at para 23.