CANADA Law and Practice Contributed by: Lorne MacLean, KC, Fraser MacLean, Sophie Bartholomew and Rana Yavari, MacLean Law
• the child’s views, where age and maturity permit; • existing caregiving arrangements; • any family violence, safety risks, or other harms; and • each parent’s ability to provide care and maintain the child’s stability. Courts encourage mediation and other forms of alter ‑ native dispute resolution before issuing orders (see 3.4 ADR in Child Law Matters ). Across Canada, the concepts of parental arrange ‑ ments and parental responsibility are used rather than the traditional terminology of custody. Parental responsibility includes the right and duty to make major decisions about a child’s upbringing. Parenting arrangements specify where the child lives and the time spent with each parent. The child’s best interests remain paramount. Existing post‑separation arrangements (the “status quo”) are not automatically considered to be in the child’s best interests. Courts must examine the circumstances of each case to determine the appropriate outcome. Courts cannot make orders that are inconsistent with a child’s best interests. Other limitations include: • orders cannot violate family‑violence protections; • orders must prioritise the child’s safety, health, and wellbeing; and • temporary orders may be issued in urgent circum ‑ Child support is the right of the child. It ensures finan ‑ cial support from a parent to meet the child’s reason ‑ able needs, including: • basic living expenses (food, clothing, shelter); • childcare, education, and medical costs; and • special or extraordinary expenses (eg, extracurricu ‑ lar activities, health‑related costs). The amount of child support is determined under the Federal Child Support Guidelines (the “Guidelines”). These guidelines apply nationally for divorcing parents and in most provinces for non‑divorcing parents. stances but are reviewed periodically. Child Support (Child Maintenance)
The Guidelines provide a standardised method for calculating child support across Canada. Support is calculated primarily based on: • the paying parent’s gross annual income; and • the number of children requiring support. The Guidelines require an annual exchange of income information, such as Federal T1 returns and pay stubs. In shared parenting situations – generally where the child spends at least 40% of their time with each par ‑ ent – support is often determined by calculating the net amount one parent owes the other, subject to pro ‑ vincial tax implications. Special expenses (referred to as “Section 7 expens ‑ es”) may be added for childcare, medical costs, or education. Some provinces allow minor variations to reflect local practices, but the Guidelines remain the nationwide standard. Parents may make private agreements on child sup ‑ port without court involvement. These can be infor ‑ mal (written between parents) or structured through mediation or collaborative law. Informal agreements that are not filed with the court are not required to comply with the Guidelines. However, if disputes arise later, or if a divorce becomes necessary, such agree ‑ ments may not be enforceable unless they align with the child’s best interests. Court Orders for Child Support Courts may issue child support orders under the Divorce Act (for married parents) or under provincial/ territorial legislation (for separated or unmarried par ‑ ents). Child support generally continues until the child reaches the age of majority (usually 18 or 19), and may extend further if the child remains dependent due to education, disability, or other circumstances. Courts may vary, extend, or terminate support orders if cir ‑ cumstances change. Deviation from the Guidelines is permitted only with written reasons (eg, undue hard ‑ ship or special circumstances).
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