If a court order has been made for you to pay or receive child support, you may have noticed a clause in the order stating that the parties must exchange financial information every year in order to determine the amount of child support paid. However, sometimes this clause is missing from court orders. This blog post will review the importance of providing updated financial information for the payment of child support, and whether you still have to do so if your court order doesn’t specify that you do.
Is there an obligation for a child support payor parent to provide financial updates to the beneficiary when such updates are not stipulated in the child support order?
The Ontario Child Support Guidelines, at section 24.1(1), clearly state that parties whose income is used to calculate child support must proactively provide updated financial information:
Annual obligation to provide income information
24.1 (1) Every person whose income or other financial information is used to determine the amount of an order for the support of a child shall, no later than 30 days after the anniversary of the date on which the order was made in every year in which the child is a child within the meaning of this Regulation, provide every party to the order with the following, unless the parties have agreed otherwise:
For the most recent taxation year, a copy of the person’s,
personal income tax return, including any materials that were filed with the return, and
notice of assessment and, if any, notice of reassessment.
As applicable, any current information in writing about,
the status and amount of any expenses included in the order pursuant to subsection 7 (1), and
any loan, scholarship or bursaries the child has received or will receive in the coming year that affect or will affect the expenses referred to in subparagraph i.
In the case of Colucci v Colucci, 2021 SCC 24, the Honourable Justice Martin discussed a case from Alberta called D.B.S v. S.R.G. (2005 ABCA 2). Applying the case of D.B.S., Justice Martin found that:
support is the right of the child and that parents have a financial obligation to their children arising at birth and continuing after separation. [...] The payor parent is always under a free-standing legal obligation- independent of any court order – to pay child support commensurate with income (Colucci para 36).
Later, at paragraph 52, the court in Colucci makes a significant note that puts the duty to pay child support commensurate with income in context with the duty to disclose income information: “the payor’s duty to disclose income information is a corollary of the legal obligation to pay support commensurate with income”.
Colucci also interprets section 24.1 of the Ontario Guidelines as follows:
Following D.B.S., lawyers and courts also began implementing “proactive strategies to avoid tedious and conflicting arguments related to ‘asking versus telling’ about income increases”, such as the use of mandatory annual disclosure obligations in child support orders in Alberta and Ontario [...]. In Ontario, the legislature has echoed this trend by amending the guidelines to include a requirement that payors disclose income information annually without the requirement of a request from the recipient (Colucci para 53).
How do I know whether my income is used to calculate child support?
Whether or not your income is used to calculate child support depends partially on how much time the child spends with you. For example:
If your child lives with you all of the time (or more than 60% of the time), only the other parent’s income is used to calculate child support.
If your child lives with the other parent all of the time (or more than 60% of the time), only your income is used to calculate child support.
If you and the other parent each have the child at least 40% of the time, both of your incomes are used to calculate child support.
Therefore, in the application of section 24.1(1) of the Ontario Guidelines in a case where the child lives full-time with one parent, the duty is solely on the paying (non-residential) parent to provide their updated income within 30 days of the anniversary of the child support order, every year in which the child remains a child within the meaning of the Regulations.
However, if section 7 expenses are involved, both parties must provide financial information.
What if there is no requirement for financial update specified in the child support order?
Section 24.1(1) of the Ontario Guidelines does not establish that a requirement for updates needs to be specified in the child support order; indeed, it does the opposite, specifying that “unless the parties have agreed otherwise”, this information is to be provided.
Additionally, as explained at para 53 of Colucci, the receiving parent does not need to request financial updates in order to be entitled to them; the obligation is a positive one placed upon the paying parent.
According to the Ontario Child Support Guidelines, as well as the discussion of financial disclosure obligations in Colucci, there is indeed a positive obligation on a payor parent to provide updated financial information regardless of whether such updates are stipulated in the child support order. That means that you and the child’s other parent should be exchanging financial information every year to determine the proper amount of child support to be paid. However, if the child spends over 60% of their time with one parent, that parent does not need to provide their financial information.
However, if section 7 expenses are involved, both parties must provide financial information. The issue of calculating child support with section 7 expenses will be discussed further in a later blog post.
For more information on calculating child support, consult the Ontario Child Support Guidelines.