Canada Child Support Laws

Table Of Contents
  1. What upkeep guidelines apply?
  2. Upkeep laws explained: What is a child entitled to after a divorce in Canada?
  3. How to apply for child support in Canada?
  4. What if paternity is unclear?
  5. How is child support calculated in Canada?
  6. Is child support retroactive in Canada?
  7. What happens if you do not pay child support in Canada?
  8. How to reduce child support payments in Canada?
  9. When do you stop paying child support in Canada?

Under Canada’s Federal Divorce Act, child support is a right, meaning the parents must provide food, shelter, education, clothes, and healthcare until the child turns 18. Under federal law, the divorce act is applicable if both parents are, quote “habitually residents in the same province at the time of the divorce.”  Provincial and territorial laws may also apply. Below is everything you need to know about child support in Canada.

  • Child support in Canada ends when the child turns 18, dies, or gets adopted.
  • You or the court may terminate parental rights.
  • The court determines if you should pay support if it strips you of your parental rights.
  • All provinces except Quebec, Manitoba and New Brunswick use federal child support guidelines when estimating child support. 
  • Provincial courts may issue an arrest warrant if the paying parent attempts to leave the province or country to avoid paying child support.
  • The court may order retroactive support upon request.
  • Children born to unmarried couples in Canada have the same rights as children born to legally married couples.
  • The mother does not have the right to deny the father visitation rights without a court order.
  • In provinces including Ontario, anyone above 16 may withdraw from parental control.
  • Stepparents may have to pay child support in some provinces (check provincial laws via the links below).

References

What upkeep guidelines apply?

In Canada, federal child support guidelines apply if the parents do not reside in the same province. Provincial and territorial upkeep laws apply if both parents reside in the same province. In addition, Quebec, Manitoba, and New Brunswick use special provincial guidelines if both parents reside in the province.

Provincial and territorial laws apply if the parents

(1) Were never married to each other

(2) Neither parent has applied for divorce.

Canada child support laws:

  • Federal guidelines apply if both parents live in any province apart from Quebec, New Brunswick, or Manitoba.
  • Federal guidelines apply if one of the parents lives in a different country or province.
  • Provincial and territorial guidelines apply if you were never married and you both live in Canada.

Upkeep laws explained: What is a child entitled to after a divorce in Canada?

Under Section 15.1, “child support order,” a parent, a child, or a guardian may apply for child support. After you apply for child support, the law requires the court to consider the factors listed below when designating parental obligations (see elements the court must consider).

All children are entitled to basic needs and extraordinary expenses related to their childcare.

How to apply for child support in Canada?

Under provincial and federal laws, two ways to apply for child support in Canada exist.

(1) The parents may make an out-of-court child support agreement.

(2) The custodial parent, the child, or the guardian may go to court and apply for support.

How to make an out-of-court child support agreement in Canada

Through mediation or negotiations, the parents may make a child support agreement on the condition that the support agreement prioritizes the needs of the child.

Section 5, a “court may take agreement” reads, quote:

“That special provisions in an order, a judgment, or a written agreement respecting the financial obligations of the spouses, 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.”

What is vital to remember is that an out-of-court child support agreement is not enforceable if you do not file it with the court. However, if you file the agreement with the court, it becomes enforceable. That means if the payer refuses to pay, the province’s enforcement body may enforce the agreement using the enforcement actions listed below.

Also:

  • The agreement must be in writing.
  • Both parties must voluntarily sign it.
  • You may include provisions for certain expenses, including college tuition, extracurricular activities, etc.

We recommend working with a mediator or family court lawyer when creating a parental agreement.

How to apply for a child support order in Canada?

We have detailed articles on how to apply for child support in all the provinces in Canada. Find your province below:

That said.

When applying for child support in Canada, the custodial parent must go to a provincial court or the court of Queens Bench and apply.

What if paternity is unclear?

Canadian paternity laws assume that you are the parent if:

(1) You are or were a spouse (common law/legal) to the birth parent when the child was born or within 300 days of the child’s birth.

(2) You registered as a parent under the Vital Statistics Act.

Consequently, if you are unsure if you are the child’s parent, it is in your best interest to take a paternity test before you sign anything.

Follow the links below to request a paternity test.

Under Canadian law, the court must consider the best interests of a child. The “best interests of the child” refer to factors including:

  • The wishes of the child. Provincial and territorial courts in Canada will consider a child’s opinions in matters of custody and support if the child is at least 12 years of age.
  • The safety and well-being of the child. The questions the court will ask include, is the home a safe environment? Is there a pattern of abuse or negligence by one or both parents?
  • The number of children in the home or under the care of either parent.
  • The lifestyle the child is used to.
  • Special needs of the child.
  • Mental and physical health of the parents.
  • Interactions between the child and members of the household

The court doesn’t need to follow provincial or federal child support guidelines in Canada

Canada’s divorce act section 3 guidelines states that:

“A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.”

But subsection 6 states:

“Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied.”

That means your child support order may differ from the amount you would get from using federal or provincial guidelines. The court may deviate from federal or provincial child support orders because of the following reasons:

  • Income disparity. If one parent earns more than the other or earns more than $150000 annually (the higher-earning parent pays support to the custodial parent).
  • Involuntary unemployment or underemployment. The court will impute income if the payor voluntarily loses their job to avoid paying support.
  • Special needs of the child. Your obligation may be higher if the child has special needs.
  • Visitation. If you travel long distances to see the child, you may request a reduction.
  • Parenting time. The more time you spend with the child, the lower your obligation.

Note that deviation works on a case-to-case basis, and the law requires the judge to provide reasons for deviation.

How is child support calculated in Canada?

Except for New Brunswick, Quebec, and Manitoba, courts in Canada use federal upkeep tables and worksheets to estimate support.

If you reside in any of the provinces above, you may use the provincial tables included in the links above to estimate your obligation.

Download 2011-2017 federal child support upkeep tables and worksheets here.

Is child support retroactive in Canada?

Yes. But how far back you may request support depends on provincial laws. In most provinces, the limit is three years.

When awarding retroactive support in Canada, the court will consider the following:

  • The Payor’s conduct toward the child and custodial parent.
  • Hardships experienced by the custodial parent and the child.
  • The child’s circumstances.
  • Reasons for the recipient’s delay in seeking retroactive support.

According to Canada’s supreme court, child support variations, retroactive or otherwise, must be fair to the payor and receiver. Because of that, the court must consider:

(1) The best interests of the child.
(2) The interests of the parents.
(3) The payor’s income/ ability to pay the obligated amount.

Because of that, the court may order a lump sum payment or create a payment plan for retroactive support.

Note that the actions of the payor may prompt the court to order the payor to reimburse legal expenses incurred by the custodial parent.

We recommend:

  • Notifying your province’s enforcement agency early if you lose your job or if you cannot make timely payments.
  • Report your income yearly.
  • Negotiate with the custodial parent if your income changes.

What happens if you do not pay child support in Canada?

Your province’s maintenance enforcement act determines what happens if you do not pay support. In general, what will happen if you fail to pay child support in Canada include:

  • Seizure of assets or property. May include vehicles and land, depending on provincial laws.
  • Credit bureau reporting.
  • Denial or revocation of professional and recreational licenses -including the payor’s driver’s license, aviation, or marine licenses.
  • Driver’s license suspension
  • Income garnishment. May include income tax refunds, employment insurance, workers’ compensation, pensions and more.

Can you go to jail for failing to pay child support in Canada?

Under provincial law, the court may issue a civil or criminal warrant of arrest if there are grounds to believe that the paying parent intends to leave the province to avoid paying child support.

Jail or prison time is often the court’s last resort because it impacts the parent’s ability to pay support.

In most provinces, failure to pay child support will result in “show cause hearings.”

During a show cause hearing, the payor will have the opportunity to explain his failure. Depending on the explanation or reasons for not paying, the court may order a payment plan or make changes to the order.

Failure to appear at a court-sanctioned hearing or failure to obey a court order constitutes contempt of court. Under Canadian law, contempt of court is a summary offense punishable by a maximum sentence of two years.

Canada Family Orders Agreement Enforcement Act: What to remember

Section 76, “offense” states that:

“Every person who is notified that a passport issued to the person has been suspended under this Part and who fails to return the passport forthwith to a Passport Office, as defined in section 2 of the Canadian Passport Order, or who subsequently uses the passport after being so notified, is guilty of an offense punishable on summary conviction and liable to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both.”

  • Failure to return a suspended passport may result in jail time.
  • Contempt of court is punishable by a maximum of two years in prison. 

How to reduce child support payments in Canada?

Provincial and federal laws require the parent to provide support to the “extent that they are capable of“. Consequently, if your financial situation changes, you may request support order modification.

Reasonable grounds to apply for a child support order modification in Canada include:

  • A change in custody arrangements. In most provinces, you may request a reduction if your parental time is above 40 percent.
  • The custodial parent’s income increases through cohabitation or employment.
  • You become disabled, or if you have a new dependent.
  • You become involuntarily unemployed or underemployed.

When do you stop paying child support in Canada?

When the child turns 18, in some provinces, the age of majority is 19. What is vital to remember is that your child support obligation ends when the order says it does. That means you must pay support until you fulfill the terms of your support order or agreement.

Voluntary termination of parental rights in Canada

If the child is up for adoption, the parent may give up their parental rights. Depending on provincial laws, it is up to the court to decide if a parent who loses parental rights has to provide support.

child endangerment, or if the home is not a safe environment for the child.         

If you are considering terminating your parental rights, we recommend consulting with a family court attorney in your province.

The child gets married

At 16, a child may get married with parental consent or via a court order. Once the child gets married, you may no longer have to pay child support. Also, if provincial laws allow a child to move out at 16, the child may apply for child support.