Episode Info
On this episode, hosted by Russell Alexander with special guest Michelle Mulchan, two family lawyers discuss everything from the basics to the complexities of child support. Tune in to Family Law Now to learn more!
Family Law Now
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As always, please feel free to explore our articles and written commentary currently available on our blog, FamilyLLB, and online resource hub, Divorce Information Centre. The show notes are available for your reference below.
Show Notes:
Federal Child Support Advisory Guidelines (CSAG)
Screenshots included for illustrative purposes only and do not represent a complete reproduction of support tables contained in the Federal Child Support Advisory Guidelines”
CSAG sections (reproduced)
Section 24 – Failure to comply with court order
Where a spouse fails to comply with an order issued on the basis of an application under paragraph 22(1)(b), the court may
(a) strike out any of the spouse’s pleadings;
(b) make a contempt order against the spouse;
(c) proceed to a hearing, in the course of which it may draw an adverse inference against the spouse and impute income to that spouse in such amount as it considers appropriate; and
(d) award costs in favour of the other spouse up to an amount that fully compensates the other spouse for all costs incurred in the proceedings.
Section 19 – Imputing income
The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
- Reasonableness of expenses
(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.
- SOR/2000-337, s. 5
Section 9 – Shared custody
Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
Family Law Rules sections (reproduced)
Rule 23 – Evidence and Trial (excerpt or provisions relevant to ‘default hearing’)
Affidavit Evidence at Uncontested Trial
(22) At an uncontested trial, evidence by affidavit in Form 14A or Form 23C and, if applicable, Form 35.1 may be used without an order under clause 1 (7.2) (i), unless the court directs that oral evidence must be given. O. Reg. 114/99, r. 23 (22); O. Reg. 202/01, s. 6 (5); O. Reg. 6/10, s. 8 (3); O. Reg. 69/15, s. 9 (5).
Rule 24 – Costs
SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS
- (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).
NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY
(2) The presumption does not apply in a child protection case or to a party that is a government agency. O. Reg. 114/99, r. 24 (2); O. Reg. 544/99, s. 10 (1).
COURT’S DISCRETION — COSTS FOR OR AGAINST GOVERNMENT AGENCY
(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful. O. Reg. 114/99, r. 24 (3); O. Reg. 544/99, s. 10 (2).
SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY
(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. O. Reg. 114/99, r. 24 (4).
DECISION ON REASONABLENESS
(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
(b) the reasonableness of any offer the party made; and
(c) any offer the party withdrew or failed to accept. O. Reg. 114/99, r. 24 (5).
DIVIDED SUCCESS
(6) If success in a step in a case is divided, the court may apportion costs as appropriate. O. Reg. 114/99, r. 24 (6).
ABSENT OR UNPREPARED PARTY
(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice. O. Reg. 114/99, r. 24 (7); O. Reg. 235/16, s. 4 (1).
BAD FAITH
(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. O. Reg. 114/99, r. 24 (8).
COSTS CAUSED BY FAULT OF LAWYER OR AGENT
(9) If a party’s lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,
(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;
(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;
(c) order the lawyer or agent personally to pay the costs of any party; and
(d) order that a copy of an order under this subrule be given to the client. O. Reg. 114/99, r. 24 (9).
DECIDING COSTS
(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,
(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or
(b) expressly reserve the decision on costs for determination at a later stage in the case. O. Reg. 298/18, s. 14.
(10.1) Revoked: O. Reg. 298/18, s. 14.
SAME
(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case. O. Reg. 298/18, s. 14.
Setting Costs Amounts
(12) In setting the amount of costs, the court shall consider,
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter. O. Reg. 298/18, s. 14.
Supporting Materials
(12.1) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court. O. Reg. 298/18, s. 14.
ORDER FOR SECURITY FOR COSTS
(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:
- A party ordinarily resides outside Ontario.
- A party has an order against the other party for costs that remains unpaid, in the same case or another case.
- A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
- There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
- A statute entitles the party to security for costs. O. Reg. 114/99, r. 24 (13).
AMOUNT AND FORM OF SECURITY
(14) The judge shall determine the amount of the security, its form and the method of giving it. O. Reg. 114/99, r. 24 (14).
EFFECT OF ORDER FOR SECURITY
(15) Until the security has been given, a party against whom there is an order for security for costs may not take any step in the case, except to appeal from the order, unless a judge orders otherwise. O. Reg. 114/99, r. 24 (15).
Failure to Give Security
(16) If the party does not give the security as ordered and, as a result, a judge makes an order dismissing the party’s case or striking out the party’s answer or any other document filed by the party, then subrule (15) no longer applies. O. Reg. 322/13, s. 14.
SECURITY MAY BE CHANGED
(17) The amount of the security, its form and the method of giving it may be changed by order at any time. O. Reg. 114/99, r. 24 (17).
PAYMENT OF EXPENSES
(18) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. O. Reg. 418/18, s. 1.
Family Responsibility Office (FRO) – sections relating to Support Deduction Orders (SDO’s) and Support Deduction Order Information Forms (SDOIFs)
Director to enforce support deduction orders
20 (1) The Director shall enforce a support deduction order that is filed in the Director’s office, subject to section 7, to any change made to the support deduction order and to any alternative payment order made under section 28, until the related support order is terminated and there are no arrears owing or until the support order and support deduction order are withdrawn. 2005, c. 16, s. 9.
Notice of support deduction order to income sources
(2) The Director may serve a notice of a support deduction order to each income source from whom the Director is seeking payment, and may serve new notices when the amount to be paid under a support order changes or arrears are owing. 1996, c. 31, s. 20 (2).
Contents of notice
(3) The notice shall set out the amount of support owed by the payor under the support order and may also set out any amount in arrears under the support order and the amount required to be paid by the income source to the Director. 1996, c. 31, s. 20 (3).
Notice to payor
(4) The Director shall send to the payor a copy of every notice sent under subsection (2). 1996, c. 31, s. 20 (4).
Notice deemed garnishment for Family Orders and Agreements Enforcement Assistance Act (Canada)
(5) A notice of a support deduction order shall be deemed to be a notice of garnishment made under provincial garnishment law for the purposes of the Family Orders and Agreements Enforcement Assistance Act (Canada). 1996, c. 31, s. 20 (5).
Support deduction order not affected by stay of enforcement of support order
(6) The operation or enforcement of a support deduction order is not affected by an order staying the enforcement of the related support order unless the support order is also stayed. 1996, c. 31, s. 20 (6).
Contents of support order
9 (1) Every support order made by an Ontario court, other than a provisional order, shall state in its operative part that unless the order is withdrawn from the Director’s office, it shall be enforced by the Director and that amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. 1996, c. 31, s. 9 (1).
Court may require that order may not be withdrawn
(2) If the court considers it appropriate to do so, it may state in the operative part of the order, instead of the wording prescribed by subsection (1), that the order and the related support deduction order shall be enforced by the Director and that they cannot be withdrawn from the Director’s office. 1996, c. 31, s. 9 (2).
Form of support deduction order
11 (1) A support deduction order shall be in the form prescribed by the regulations. 1996, c. 31, s. 11 (1).
Information re payor, income source
(2) Before making a support deduction order, the court shall make such inquiries of the parties as it considers necessary to determine the names and addresses of each income source of the payor and the amounts paid to the payor by each income source and shall make such other inquiries to obtain information as may be prescribed by the regulations. 1996, c. 31, s. 11 (2).
Same
(3) If the support order is sought on consent or by way of motion for judgment or if the making of the support order is uncontested, the parties shall give the court the particulars described in subsection (2) and such other information as may be prescribed by the regulations. 1996, c. 31, s. 11 (3).
Completion of form, etc.
(4) The support deduction order shall be completed and signed by the court, or by the clerk or registrar of the court, at the time the support order is made and shall be entered in the court records promptly after it is signed, even if the support order may not have been settled or signed at that time. 1996, c. 31, s. 11 (4).
