Written by Colin A. Steffler
We normally think of “guidelines” as recommendations or informal rules that fall short of being mandatory. In this sense, the Child Support Guidelines are not really “guidelines” at all. They are regulations under both the federal Divorce Act and Ontario’s Family Law Act, and judges have to follow them, except in limited, specified circumstances. The Table set out in the Guidelines shows what amount of child support is payable based on a parent’s income and the number of children, and, in general, what the Table says goes. So, if, for example, you make $40,000.00 a year and have one child, the current Guidelines would require that you pay $359.00 per month in child support and, in most cases, a judge would not have authority to order a different amount.
In comparison, the Spousal Support Advisory Guidelines (SSAGs) are just that – they are “advisory” and much closer to what would normally be described as “guidelines”. Rather than mandating a single amount of spousal support based on a payor’s income, the SSAGs provide a suggested range for both the amount and duration of such payments. Moreover, while the SSAGs are a useful tool, and are relied on heavily by the courts, they do not have the binding force of law and judges are not technically obligated to follow them. That said, the SSAGs have been endorsed by courts at all levels across Canada, and a judge who deviates from the SSAGs would have to have very compelling reasons for doing so.
In addition to these differences, there are a number of other important distinctions between child and spousal support, such as the following.
Entitlement
Understandably, children are entitled to child support simply by virtue of being children. Spouses, in contrast, are not entitled to support simply because they are or were spouses and a first step to claiming spousal support is establishing entitlement to it.
Waivers of Support
When entering into Separation Agreements, it is fairly common for spouses to release one another from potential spousal support claims. While there are some circumstances that may lead a court to overturn or disregard waivers of spousal support, such provisions generally remain binding. In other words, it is possible for spouses to contract out of spousal support. It is not, on the other hand, possible for spouses to contract out of child support. Child support is the right of the child, not of the parent, and parents, therefore, have no authority to release one another from child support claims. Any provision in a Separation Agreement claiming to waive child support is ultimately unenforceable.
Income Tax Treatment
Spousal support is treated as income for tax purposes. As long as the spousal support payments meet certain criteria, they can be deducted from the payor’s income and added to the recipient’s income. In contrast, child support does constitute income for tax purposes and payors do not receive any deduction for child support payments made.
