Did You Know? Child Support Takes Precedence Over Many Other Financial Obligations
In divorce proceedings, it is generally the norm for one party to ask for spousal support and child support from the other, based on a legally acknowledged desire to redress certain financial inequalities that one party bears disproportionately due to the fact of the parties’ marriage to each other, and to make adequate provision for the children of the marriage. These requests for support orders are generally made at the same time, as part of the same divorce proceedings.
But what happens when – for one practical reason or the other – these orders impact each other? If the paying spouse cannot satisfy both orders? Or if he or she has other financial obligations?
The answer is found in the federal Divorce Act, which contains an express provision (in s. 15.3) that establishes that a court considering both an application for a child support order and an application for a spousal support order must give priority to child support in determining those applications.
As a practical matter, this means that if a court must make a choice between the two, or if the court must grapple with setting a child support amount despite the payor’s limited ability to pay spousal support as well, then the child support obligation must prevail.
Courts have had to apply this provision over the years, and have refined its scope and meaning. Here are some additional points to know about the nature and the extent of the priority given to child support orders under this section of the Divorce Act:
1) As the Divorce Act clearly states, child support takes precedence over spousal support. If for example the paying spouse has insufficient funds to pay both child and spousal support, then the child’s needs will take priority. (See the decision in Hiller v. Hiller)
2) The obligation to pay child support also takes precedence over other a variety of other financial obligations, such as:
• debts owed to creditors (Blake v. Blake)
• the paying spouse’s wish to preserve capital and assets such as an R.R.S.P. (Blake v. Blake)
• legal fees (Martin v. Martin)
• tax arrears (Tweel v. Tweel)
• the business and financial commitments of the paying spouse (Cook v. Cook)
• other ancillary lifestyle obligations such as car payments, overly-high mortgage payments, vacations, recreations and entertainment expenses, tobacco, and alcohol (Murray v. Murray).
3) A parent is not entitled to deliberately minimize his or her income (or avoid availing themselves of substantial equity in real property) simply to reduce his or her child support obligations. (Wishart v. Wishart)
With that said, it should be noted that while child support takes precedence over spousal support, this does not mean that the principle should be stringently applied to the point that the child is given everything it may need, but the mother is left destitute. (Kaderly v. Kaderly)
List of cited decisions:
• Blake v. Blake (1994), 1994 CarswellNfld 264 (N.L. T.D.)
• Cook v. Cook (1990), 1990 CarswellNfld 273 (N.L. T.D.)
• Hiller v. Hiller (1995), 1995 CarswellAlta 618 (Alta. Q.B.)
• Kaderly v. Kaderly (1997), 1997 CarswellPEI 85 (P.E.I.T.D.)
• Martin v. Martin (1994), 1994 CarswellNS 36 (N.S. C.A.)
• Murray v. Murray (1991), 1991 CarswellAlta 152 (Alta. Q.B.)
• Tweel v. Tweel (1994), 1994 CarswellPEI 16 (P.E.I. T.D.)
• Wishart v. Wishart (1990), 1990 CarswellBC 486 (B.C. S.C.)
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering legal advice and assisting clients with family-related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.
