The case of Zhao v. Xiao, 2023 ONCA 453 revolved around an appeal concerning child support and related relief, and the appeal was ultimately dismissed. Two issues which stand out from the case are the role of household income in Section 7 expenses and the termination date for child support.
Background Facts of the Case
- Divorce: Lixin Zhao and Tian Xiao divorced in 2003 and had two children.
- Agreements: They had several agreements concerning child support and property division.
- Residence: The appellant lived in China from 2003 to 2011 and has been in the United States since July 2011.
- Remarriage: Both parties remarried, affecting the calculation of child support and other financial obligations.
- Application: In November 2016, Lixin Zhao commenced an application for child support and other relief.
1. The Role of Household Income in Section 7 Expenses
The Court’s decision to consider household income when determining each parent’s share of Section 7 expenses is a notable departure from the norm, which usually focuses on individual income.
[15] “We also reject the appellant’s submission that the Superior Court appeal judge erred in upholding the application judge’s order that ongoing special and extraordinary expenses for the children be shared by the parties in proportion to their household incomes.”
[16] “Under s. 7 of the Federal Child Support Guidelines, the court may make an order for payment of such expenses taking account, among other things, of the reasonableness of the expense in relation to the means of the parents or spouses and those of the child.”
[17] “… In these circumstances, the application judge decided to set each party’s share of s. 7 expenses based on their respective household income. While the guiding principle is that s. 7 expenses are to be shared by the parties in proportion to their own income, it was not unreasonable for the application judge to apportion the s. 7 expenses based on each party’s household income given the facts of this case.” (Zhao v. Xiao, paras. 15, 16, 17)
Implications for Future Cases
- Broadening the Scope: This precedent opens the door for courts to consider a wider range of financial resources, including those of new spouses or partners, when determining special and extraordinary expenses for children.
- Equitable Distribution: The new approach could lead to more equitable outcomes, especially in cases where one parent has remarried and the new spouse contributes significantly to household income.
Legal Considerations
- Due Diligence: Lawyers should now consider advising clients to gather comprehensive financial information about their household, not just their individual income, to prepare for Section 7 expense calculations.
2. The Termination Date for Child Support
The Court’s decision to extend child support payments until each child reaches the age of 25 is notable.
“The court upheld the application judge’s determination that child support should end upon each child’s 25th birthday.” (Zhao v. Xiao, para. 18)
Implications for Future Cases
- Extended Support: This case could influence a broad range of future cases, particularly those involving children pursuing higher education or vocational training beyond the age of 18.
- Case-by-Case Basis: The ruling suggests that the termination date for child support is not set in stone and can be adjusted based on the specific circumstances of each case.
“There is nothing arbitrary or speculative about the selection of the age of 25 on the facts of this case. The application judge fully considered all the circumstances of the children and their parents.” (Zhao v. Xiao, para. 19)
Legal Considerations
- Advisory Role: Family law practitioners should now consider advising clients that child support obligations could extend beyond the age of 18, depending on various factors like education, health, and other special circumstances.
Final Thoughts
Zhao v. Xiao case reflects the fact that courts are increasingly prepared to be practical and look at all relevant factors to make decisions that are equitable in the circumstances of the case – with this particular case focussing on section 7 expenses and the termination of child support.
Let’s continue to elevate the practice of family law in Ontario!
Cheryl Goldhart is a mediator and arbitrator who can make a difference in resolving your family disputes.
- Near 40 Years Practicing Family Law: Cheryl’s extensive experience in family law spans nearly four decades.
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