Four Things to Know about Child Support

The clear message being sent from Canadian Courts, the Provincial Government and the Federal Government is that children come first. Both Governments have enacted child support legislation to make the amount of child support payments consistent and easier to determine. As well, the Provincial Government has enacted support enforcement legislation to ensure that court-ordered child support is actually paid and received.

In addition, the Supreme Court of Canada has set out the criteria to determine if a “step-parent” is financially responsible for a child born out of a previous relationship. Also, the Ontario Court of Appeal has re-affirmed some old principles relating to child support.

Consider the case of Wright v. Zaver.

Deborah Ann Wright sought child support for her son, Michael, from Michael’s biological father, William Zaver. William defended the claim, once again in 2002.Deborah initially commenced proceedings for custody of her son Michael and support from Michael’s biological father, William Zaver in 1985. Then, William denied paternity. Deborah and William negotiated a resolution which was incorporated into an Agreement.

The Agreement provided that Deborah would have custody of Michael and that William would pay a lump sum of $4000.00 for child support without admitting paternity. The Agreement was incorporated into a Court Order, in which Deborah was granted custody, William was to pay $4000.00 and William was not to have any access to Michael.Eight months later, William had second thoughts. He commenced an Application to vary the Agreement and the Order. William sought access to Michael and offered to make payments towards his support. Deborah bitterly opposed William’s Application. Deborah alleged that any access by William was against Michael’s interest.

She believed that William “sold away” his rights to be a parent to Michael. Deborah swore that she would make no further financial or emotional demands of William, but if William persisted, Deborah threatened to seek six times the support that William offered to pay. Faced with a long and bitter legal battle, William withdrew his Application.Deborah then married Douglas Wright in 1990. Throughout the marriage, Douglas treated Michael as his own son. When they separated in 1999, Douglas acknowledged his obligation to Michael and did pay child support for Michael in accordance with the Guidelines.

In 2000, and fifteen years after separation, Deborah sought additional support from William. At the time, and taking into consideration the child support Deborah received from Douglas, Deborah had a net monthly deficit of $120.00. William had the ability to pay that amount and more. He earned in excess of $60,000 per year and had a net worth in excess of $400,000.

William unsuccessfully opposed Deborah’s claim. The Ontario Court of Justice stated that it was not bound by the Agreement or previous Order. Rather, and in accordance with the Family Law Act, the Court noted its power to set aside a waiver of support or a provision of support if the failure to do so would result in unconscionable circumstances. In addition, the Court affirmed the principle that a spouse cannot barter away a child’s right to support – it is the right of the child.

The Court concluded that it could order William to pay support in face of the $4000.00 once and for all payment. But, what about the fact that Douglas was already paying support for Michael in accordance with the Guidelines? Should William be ordered to pay “duplicate” support?

The Court found that William should pay support and ordered him to pay support in accordance with the Guidelines. The Court concluded that it did not have the ability to order anything less than the table amount in accordance with the Guidelines. The Court stated that it could make an order for less than the table amount for a step-parent, but not for a biological parent, such as William, under the Guidelines. The Ontario Court of Appeal agreed. It found the introduction of the Child Support Guidelines created a right to vary Child Support, as such it was not necessary to consider whether there had been a material change in circumstances.

On the facts of this case, the Court did not have the discretion to order an amount of support different than that dictated by the Guidelines. Despite that fact that Douglas was paying support, the Court was required to order Child Support in accordance with the Guidelines. In the end, Deborah is to be paid child support for Michael from both William, the biological father, and Douglas, the step-father. Also note that each of William and Douglas is to pay the full amount that each of them should pay under the Guidelines, without reduction.

The messages being sent by the Court are clear:

• Children come first.
• Courts can always re-open matters in the best interests of children.
• If you are a biological parent, expect to be held financially responsible for your child(ren) irrespective of any agreement otherwise.
• If you are in a relationship of permanence, you may very well be held responsible for the children of your partner.