Ontario Family Law — Child Support, Spousal Support, and the SSAG

Child Support — Legal Framework

Child support in Ontario is governed by two parallel statutory regimes:

Federal Child Support Guidelines SOR/97-175, made under theDivorce Act RSC 1985 c 3 (2nd Supp) — apply where parties are legally married and proceeding under the Divorce Act
Child Support Guidelines O.Reg. 391/97, made under theFamily Law Act RSO 1990 c F.3 — apply where parties were not married (common-law spouses, spouses proceeding under the FLA rather than theDivorce Act)

The two sets of Guidelines are substantively identical — the same tables, the same special expenses provisions, and the same imputed income principles apply under both. The distinction matters for jurisdiction: the Divorce Act is federal and applies to married spouses; the FLA Ontario regime applies to all others.

Table Amount — Base Child Support

The base child support obligation is determined by the Federal Child Support Guidelines (Schedule I — Ontario tables). The table amount is a function of: (a) the payor parent's income; (b) the province of residence; and (c) the number of children.

The Guideline amount is the presumptive amount — courts must order the table amount unless one of the exceptions applies:

Undue hardship — payor or recipient demonstrates circumstances causing undue hardship if ordered to pay the Guideline amount (e.g., exceptional debts from the relationship, access costs, support of another child)
Income over $150,000 — table amounts are set to $150,000; for income above that level, the court must add an appropriate amount for each additional dollar of income (s.4 Federal Guidelines)
Split or shared custody — special provisions apply

Income for Child Support Purposes

Income for child support is determined under Schedule III of the Federal Guidelines, starting from line 15000 (total income) of the T1 income tax return and making adjustments. Key adjustments:

Business owners/self-employed: income may be grossed up for pre-tax corporate income retained in a corporation (s.18 Federal Guidelines)
Employment benefits, non-recurring income, and capital gains may be added
RRSP withdrawals included in the year of withdrawal

Imputed Income

Courts may impute income to a parent who is intentionally unemployed or underemployed: s.19 Federal Guidelines. The leading Ontario case is Drygala v Pauli(2002) 61 OR (3d) 711 (ONCA):

The court must be satisfied that the parent is intentionally unemployed or underemployed
The test is objective — what income could the parent reasonably earn?
Relevant factors: education, work history, skills, job market, childcare obligations
A parent is not required to maximize income — but deliberate steps to reduce income will attract imputation

Section 7 Special and Extraordinary Expenses

In addition to the base table amount, s.7 of the Federal Guidelines allows for the apportionment of special or extraordinary expenses in proportion to each parent's income. Section 7 expenses include:

Childcare expenses incurred to allow the recipient parent to work or go to school
Medical and dental insurance premiums reasonably attributable to the child
Health-related expenses not covered by insurance (orthodontia, therapy, eyeglasses)
Post-secondary education costs
Extracurricular activities — but only if extraordinary (significantly above community standards) OR the expense is necessary for the child's special needs

The apportionment is usually based on the net income of each parent after deducting their own income tax (the "net after-tax income" approach adopted in most Ontario cases). The recipient parent is credited for the cost they pay directly.

Shared Custody — Proportionate Offset

Where each parent exercises parenting time of 40% or more, the Guideline child support is discretionary under s.9 of the Federal Guidelines. Courts apply the offset approach — subtract each parent's Guideline amount for the other's income — and then consider the actual increased cost of the shared parenting arrangement and the ability of each parent to support the children.

Spousal Support — the SSAG

Spousal support in Ontario is governed by the Family Law Act RSO 1990 c F.3 (unmarried spouses) and the Divorce Act RSC 1985 (married spouses). The Spousal Support Advisory Guidelines (SSAG) — published by the federal Department of Justice — are not law but are widely used as a starting point:Fisher v Fisher 2008 ONCA 11.

Entitlement to Spousal Support

Before quantum is considered, the court must find entitlement. Entitlement is established under one or more of the following grounds:

Compensatory: One spouse suffered economic disadvantage from the roles adopted during the relationship (e.g., primary caregiver who sacrificed career advancement). The SCC recognized compensatory support in Moge v Moge[1992] 3 SCR 813.
Non-compensatory (needs-based): One spouse has a need for support based on economic interdependence, even without economic sacrifice from the marriage.Bracklow v Bracklow [1999] 1 SCR 420 established that need alone, arising from the relationship, can ground entitlement.
Contractual: A marriage contract or separation agreement provides for support.

SSAG Ranges — Without Child Support Formula

The SSAG Without Child Support Formula applies where there are no dependent children. The range for amount is:

1.5-2% of the difference in the spouses' gross incomes for each year of marriage
Minimum amount: 1.5% of gross income difference per year of marriage
Maximum amount: 2% per year (capped at 50% of income difference after many years)

Duration: 0.5-1 year of support per year of marriage (short marriages); indefinite support (marriages over 20 years, or where marriage was over 5 years and marriage + recipient's age exceeds 65).

SSAG Ranges — With Child Support Formula

Where there are dependent children, the With Child Support Formula applies. Amount is calculated based on net disposable income (NDI) — income after tax and child support. Support is set at a range that provides each party with 40-46% of the combined NDI (the payor's NDI drops and the recipient's rises toward equalization within the range).

Duration under the With Child Support Formula is connected to child support: support continues as long as child support is paid (and for a period after), with an additional period that ranges up to the length of the relationship.

Deviation from SSAG

Courts may depart from the SSAG ranges for reasons including:

Property equalization — large equalization payment may reduce support
Payor earning capacity — very high income may warrant different analysis
Recipient's failure to achieve self-sufficiency
Non-disclosure of income
Health or disability

Variation of Support Orders

A support order (child or spousal) can be varied on application where there has been a material change in circumstances since the order was made:Willick v Willick [1994] 3 SCR 670 (child support); L.M.P. v L.S.2011 SCC 64 (spousal support).

For child support, a material change includes: change in payor income; change in recipient income; change in number of children or their needs; change in custody arrangements. Annual income disclosure is required for all child support orders.

For spousal support, a material change must be a change that, if it had existed at the time of the order, would likely have resulted in a different order (Willick). Anticipated changes (e.g., planned retirement) are not material changes until they actually occur. A recipient's failure to become self-sufficient may or may not be a material change depending on whether the original order contemplated a plan for self-sufficiency.

Key Ontario Court of Appeal Authorities

Drygala v Pauli (2002) 61 OR (3d) 711 — imputed income; intentional underemployment test
Fisher v Fisher 2008 ONCA 11 — SSAG as persuasive but not binding; courts must consider SSAG ranges and explain deviations
Moge v Moge [1992] 3 SCR 813 — compensatory spousal support; economic sacrifice from marriage roles
Bracklow v Bracklow [1999] 1 SCR 420 — non-compensatory support; need alone can ground entitlement
Willick v Willick [1994] 3 SCR 670 — material change of circumstances for variation
L.M.P. v L.S. 2011 SCC 64 — variation of spousal support; material change analysis; effect of delay in seeking variation