When a relationship that produces children comes to an end, in addition to dividing assets, child custody and support must be worked out as well. This is true whether the couple involved was married or not.
To help determine the child support arrangement, the federal Child Support Guidelines under the Divorce Act, are looked to. More specifically, Section 3 of the Child Support Guidelines lays out the factors that are taken into consideration. They include:
- The income of the paying parent
- The number of children in need of support
- How much time the children spend with the non primary parent
When the parent making child support payments has an income that is more than $150,000, the court has some discretion.
Recently, a party to a divorce from Alberta challenged the validity of the Child Support Guidelines. The case ended up with the Supreme Court of Canada. Specifically, the man alleged that the Child Support Guidelines were inconsistent with the Divorce Act. Unlike the Child Support Guidelines, the Divorce Act takes into consideration the incomes of not just the paying parent, but the custodial parent as well.
The case made its way to the Supreme Court of Canada after an application for judicial review was denied by the Federal Court of Canada. In denying the review the court stated that the forum was inappropriate since the court did not have much experience with family law matters. On appeal, it was alleged that the reasoning provided to support the denial of the review was insufficient.
In a unanimous decision, the high court determined that when it comes to denying judicial review, superior courts have overriding discretion.
This decision does not mean that an attempt to wipe out the Child Support Guidelines cannot still be made. It can be pursued via a traditional proceeding. As any changes to the Child Support Guidelines would be relevant to many, we will provide updates on the matter as they become available.