Uniform Federal and Provincial
Child Support Guidelines Act, 1997
EXPLANATORY NOTE
The Bill amends the Family Law Act to require a court that makes or varies an order for the support of a child under the Act to do so in accordance with child support guidelines. The court may order an amount different from the amount determined under the guidelines where special provisions have been made for the benefit of a child such that application of the guidelines would lead to an inequitable result. The court may also order an amount different from the amount determined under the guidelines on consent of the parents if the court is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.
The Lieutenant Governor in Council is authorized to make regulations establishing guidelines for the making of orders for child support.
Bill 1281997
An Act to amend the Family Law Act
to provide for child support guidelines
and to promote uniformity between
orders for the support of children
under the Divorce Act (Canada) and orders
for the support of children
under the Family Law Act
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
1. Section 1 of the Family Law Act is amended by adding the following definition:
"child support guidelines" means the guidelines established by the regulations made under subsections 69 (2) and (3). ("lignes directrices sur les aliments pour les enfants")
2. Subsection 31 (1) of the Act is amended by striking out "in accordance with need" in the second line.
3. (1) Clauses 33 (7) (b) and (c) of the Act are repealed and the following substituted:
(b) apportion the obligation according to the child support guidelines.
(2) Subsection 33 (9) of the Act is amended by adding "for a spouse or parent" after "support" in the second line.
(3) Clause 33 (9) (k) of the Act is repealed.
(4) Section 33 of the Act is amended by adding the following subsections:
Application of child support guidelines
(11) A court making an order for the support of a child shall do so in accordance with the child support guidelines.
Exception: special provisions
(12) Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines if the court is satisfied,
(a) that special provisions in an order or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property,directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the child support guidelines would result in an amount of child support that is inequitable given those special provisions.
Reasons
(13) Where the court awards, under subsection (12), an amount that is different from the amount that would be determined in accordance with the child support guidelines, the court shall record its reasons for doing so.
Exception: consent orders
(14) Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines on the consent of both parents if the court is satisfied that,
(a) reasonable arrangements have been made for the support of the child to whom the order relates; and
(b) where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance with the child support guidelines.
Reasonable arrangements
(15) For the purposes of clause (14) (a), in determining whether reasonable arrangements have been made for the support of a child,
(a) the court shall have regard to the child support guidelines; and
(b) the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the child support guidelines.
4. (1) Section 34 of the Act is amended by adding the following subsection:
Same
(3.1) An agency referred to in subsection 33 (3) to whom an order for support is assigned is entitled to the payments due under the order and has the same right to be notified of and to participate in proceedings under this Act to vary, rescind, suspend or enforce the order as the person who would otherwise be entitled to the payments.
(2) Subsection 34 (5) of the Act is amended by adding "other than an order for the support of a child" before "the court" in the second line.
5. Subsection 35 (2) of the Act is repealed and the following substituted:
Effect of filing
(2) A provision for support or maintenance contained in a contract or agreement that is filed in this manner,
(a) may be enforced;
(b) may be varied under section 37; and
(c) except in the case of a provision for the support of a child, may be increased under section 38,
as if it were an order of the court where it is filed.
6. Subsections 37 (1) and (2) of the Act are repealed and the following substituted:
Application for variation
(1) An application to the court for variation of an order made or confirmed under this Part may be made by,
(a) a dependant or respondent named in the order;
(b) a parent of a dependant referred to in clause (a);
(c) the personal representative of a respondent referred to in clause (a); or
(d) an agency referred to in subsection 33 (3).
Powers of court: spouse and parent support
(2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependant's or respondent's circumstances or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33.
Powers of court: child support
(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33.
Application of child support guidelines
(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines.
Exception: special provisions
(2.3) Despite subsection (2.2), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines if the court is satisfied,
(a) that special provisions in an order or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the child support guidelines would result in an amount of child support that is inequitable given those special provisions.
Reasons
(2.4) Where the court awards, under subsection (2.3), an amount that is different from the amount that would be determined in accordance with the child support guidelines, the court shall record its reasons for doing so.
Exception: consent orders
(2.5) Despite subsection (2.2), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines on the consent of both parents if the court is satisfied that,
(a) reasonable arrangements have been made for the support of the child to whom the order relates; and
(b) where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance with the child support guidelines.
Reasonable arrangements
(2.6) For the purposes of clause (2.5) (a), in determining whether reasonable arrangements have been made for the support of a child,
(a) the court shall have regard to the child support guidelines; and
(b) the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the child support guidelines.
7. Section 38 of the Act is amended by re-numbering subsections (1) and (2) as subsections (2) and (3) respectively and by adding the following subsection:
Non-application to orders for child support
(1) This section does not apply to an order for the support of a child.
8. The Act is amended by adding the following section:
Priority to child support
38.1 (1) Where a court is considering an application for the support of a child and an application for the support of a spouse, the court shall give priority to the support of the child in determining the applications.
Reasons
(2) Where as a result of giving priority to the support of a child, the court is unable to make an order for the support of a spouse or the court makes an order for the support of a spouse in an amount less than it otherwise would have, the court shall record its reasons for doing so.
Consequences of reduction or termination of child support
(3) Where as a result of giving priority to the support of a child, an order for the support of a spouse is not made or the amount of the order for the support of a spouse is less than it otherwise would have been, any material reduction or termination of the support for the child constitutes a material change of circumstances for the purposes of an application for the support of the spouse or for variation of an order for the support of the spouse.
Non-application of limitation
(4) Subsection 50 (1) does not apply to an action or application for the support of a spouse in the circumstances set out in subsection (3).
9. Section 39 of the Act is amended by adding the following subsections:
Combined support orders
(2) Where an application is made under section 37 to vary an order that provides a single amount of money for the combined support of one or more children and a spouse, the court shall rescind the order and treat the application as an application for an order for the support of a child and an application for an order for the support of a spouse.
Existing proceedings
(3) Where an application for the support of a child, including an application under section 37 to vary an order for the support of a child, is made before the day the Uniform Federal and Provincial Child Support Guidelines Act, 1997 comes into force and the court has not considered any evidence in the application, other than in respect of an interim order, before that day, the proceeding shall be deemed to be an application under the Family Law Act as amended by the Uniform Federal and Provincial Child Support Guidelines Act, 1997, subject to such directions as the court considers appropriate.
10. (1) Subsection 56 (1) of the Act is amended by striking out "support" in the second line.
(2) Section 56 of the Act is amended by adding the following subsection:
Contracts subject to child support guidelines
(1.1) In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract or paternity agreement pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract or agreement.
11. Section 59 of the Act is amended by adding the following subsection:
Child support guidelines
(1.1) A court shall not incorporate an agreement for the support of a child in an order under subsection (1) unless the court is satisfied that the agreement is reasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the agreement.
12. Section 69 of the Act is amended by adding the following subsections:
Same
(2) The Lieutenant Governor in Council may make regulations establishing,
(a) guidelines respecting the making of orders for child support under this Act; and
(b) guidelines that may be designated under subsection 2 (5) of the Divorce Act (Canada).
Same
(3) Without limiting the generality of subsection (2), guidelines may be established under subsection (2),
(a) respecting the way in which the amount of an order for child support is to be determined;
(b) respecting the circumstances in which discretion may be exercised in the making of an order for child support;
(c) respecting the circumstances that give rise to the making of a variation order in respect of an order for the support of a child;
(d) respecting the determination of income for the purposes of the application of the guidelines;
(e) authorizing a court to impute income for the purposes of the application of the guidelines;
(f) respecting the production of income information and providing for sanctions when that information is not provided.
Commencement
13. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
14. The short title of this Act is the Uniform Federal and Provincial Child Support Guidelines Act, 1997.