Gifts And Support Orders

The Ontario guidelines for child support are the same as the Federal Child Support Guidelines. In Ontario, an order for child support can be made under the Family Law Act if the parents are separated or were never married. Such an order can also be made under the federal Divorce Act. In either case, the same guidelines apply. The courts have also applied the same principles for the purpose of calculating spousal support.

A spouse's income is based on line 150 ("Total Income") of his or her T1 general return. However, under section 19 of the Federal Child Support Guidelines, a court may impute income to the spouse " as it considers appropriate in the circumstances." Nine circumstances are listed in which income imputation may be appropriate. Because these circumstances are intended merely as examples, the court retains discretion to impute income in other circumstances as well. One listed circumstance involves a situation in which a spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. The case of a gift is not included among the nine listed circumstances.

Recent Ontario cases have confirmed the court's discretion to include gifts in the calculation of income for support purposes. Such an inclusion of gifts derives from the 2007 Ontario Court of Appeal's decision in Bak v. Dobell, 2007 ONCA 304. The court enumerated the following factors that are to be considered in determining whether it is appropriate to include gifts in income: ( 1) the regularity of the gifts, (2) the duration of their receipt, (3) whether the gifts were part of the family's income during cohabitation that entrenched a particular lifestyle, (4) any circumstances that mark the gifts as being unusual, (5) whether the gifts did more than provide a basic standard of living, (6) the income generated by the gifts in proportion to the payer's income, (7) whether the gifts were made to support an adult child through a period of crisis, (8) whether the gifts are likely to continue, and (9) the true nature and purpose of the gifts.

Horowitz v. Nightingale, 2015 ONSC 190, was a motion for temporary child support in which Bak v. Dobell was applied. The amount of $50,000 was imputed to a husband's income for the purpose of calculating child and spousal support. The husband had been receiving a gift in this amount from his parents in each of the preceding eight years. The court concluded that the funds were treated as part of...