Introduction to Child Support

What is child support?

Child support is money paid by a parent, or a stepparent, to the other parent for the financial benefit of the children. Child support is paid when the relationship between the parents has ended. Normally, the parent who has the child for the least amount of time pays support to the parent who has the child for the most amount of time.

Why is child support paid?

All children have the right to receive financial and emotional support from their parents. The parent who has the child for the most amount of time supports the child in many different ways, including financially. The parent who has the child for the least amount of time pays child support to the other parent to help make sure that the child’s needs are met when they are in the other parent’s care.

Payments of child support can be required because of a written agreement between the parents, such as a separation agreement, a child support agreement or a parenting agreement, because of the award of an arbitrator or because of a court order.

It is important to know that after parents separate, child support is owing, whether there is an agreement or order in place or not.

Who has to pay child support?

Biological parents, parents who have had a child through assisted reproduction and adoptive parents are obliged to pay child support, including unmarried parents and married parents.

When a child was conceived with assisted reproduction, a surrogate mother can be a parent obliged to pay child support unless the people who wanted to have the child have an agreement with the mother that says otherwise. A donor of egg or sperm is not a parent who is required to pay child support unless the people who wanted to have the child have an agreement with the donor that says otherwise.

Someone who is the spouse of a parent is a stepparent and can be required to pay child support to the parent. This can happen under the Divorce Act if the couple were married and the stepparent had a parent-like relationship with the child. Under the Family Law Act, married spouses and unmarried spouses can be obliged to pay child support to the parent as long as: the stepparent contributed to the support of the child for at least one year; the application is brought within one year of the stepparent’s last contribution to the support of the child; and the stepparent and parent have separated. Stepparents can be obliged to pay child support even when the other biological parent is already paying child support.

How do you get child support?

Child support can be agreed to in a separation agreement. If you can’t agree, you can ask the court for an order that child support be paid by starting a court case.

If you are receiving income assistance, you will have given your right to apply to court for child support to the Family Maintenance Program, and the program will decide whether to make an application for child support with no input from you. Child support will be paid to the program while you are receiving income assistance. You may be entitled to some of the support that is paid; speak to your case worker for more information.

Which court do you apply to?

If you need to apply for a child support order, you can apply to either the Family Court or the Supreme Court. Each court has its own set of forms and rules. Usually, it’s simpler and less expensive to obtain a child support order in Family Court. However, Family Court cannot deal with claims for divorce, the division of property or debt, the protection of property or claims under the Divorce Act. If you may need to ask for orders like these, it may be better to proceed in Supreme Court, where everything can be dealt with in one court case.

How is the amount of child support calculated?

The amount of child support payable is determined by the Child Support Guidelines. For most people, the Guidelines specify the amount of support based on the paying parent’s income and the number of children support is being paid for. The exceptions to this general approach are discussed below.

You can find the Child Support Guidelines and calculate the support amount using Child Support Online Look-up on the federal Department of Justice website at [http:// www.canada.justice.gc.ca www.canada.justice.gc.ca]. Select “Programs and Initiatives”, click on “Child Support” link, and then select “Federal Child Support Amounts” under “Resources”.

What costs does child support cover?

The basic child support amount is a contribution to all of the children’s basic expenses and to the cost of raising the children, including: the children’s share of the rent or mortgage, phone bill, electricity bill, cable bill and grocery costs; new clothing and new shoes; haircuts, school supplies and toiletries, and so forth.

What are “special or extraordinary” expenses?

In some cases, both parents can be obliged to contribute to certain of the child’s expenses on top of the basic amount of child support. There are four types of expenses that may qualify as special or extraordinary expenses:

• child care expenses, often so the parent who looks after the child can work or go to school in order to get work;
• medical or health related expenses for the child, including the cost of medical insurance;
• some educational expenses, including for post-secondary education or private school fees; and
• some expenses for extracurricular activities like music or art lessons, or sports.

These types of expenses don’t automatically qualify as “special or extraordinary” expenses. To qualify, the expenses have to be reasonable in light of the parents’ financial circumstances and the children’s needs. As a result, piano lessons might qualify as a special or extraordinary expense for one family but not for another.

How are “special or extraordinary” expenses paid?

When an expense qualifies as a “special or extraordinary” expense, both parents must contribute to the cost of the expense in proportion to their incomes.

If both parents have the same income, they would each pay for one-half of the cost of the expense. If parents have different incomes, they pay in the proportion of their individual incomes to the total income of both parents. For example, say a father has an income of $20,000 and a mother has an income of $30,000. Together, their incomes total $50,000. Of this total amount, the father earns $20,000 or 40%, and the mother earns $30,000 or 60%. The father would pay for 40% of the cost of a qualifying special or extraordinary expense and the mother would pay for the remaining 60% of the cost.

The cost of special expenses that parents share is the cost left over after any tax benefits or subsidies, like the federal tax deduction available for child care expenses, are taken into account.

What if parents share the care of the children?

If the parent paying child support looks after the children for at least 40% of their time, a parenting arrangement called “shared custody”, the parent may be able to pay a smaller amount of support than what the Child Support Guidelines normally require. In cases like this, the parents should take a careful look at their financial circumstances and the financial needs of the children.

Where parents have shared custody, the court can make an order that child support be paid in a lower amount than the Guidelines require or the parents can reach an agreement that a lower amount will be paid.

What if each parent has a child in their care?

If one or more children live with each parent, called “split custody”, each parent is supposed to pay the full Guidelines amount of child support to the other parent for the children in that parent’s care. The amount that changes hands is the difference between the higher amount and the lower amount.

For example, say that a father would have to pay a mother $400 per month for the children in her care, and the mother would have to pay the father $250 per month for the children in his care. The father would pay the mother $150, the difference between what he owes her and what she owes him.

Where parents have split custody, the court can make an order that child support be paid in a lower amount than the Guidelines require or the parents can reach an agreement that a lower amount be paid.

What if the person paying child support is a stepparent?

If the paying parent is a stepparent, he or she may pay less child support than what the Child Support Guidelines would normally be required. There is no formula to do this calculation; often the court treats the stepparent’s obligation as a top up to the amount that should be paid by the child’s other parent.

In determining the amount of support paid by stepparents under the Family Law Act, the court can consider:

• the length of time the child and stepparent lived together; and
• the child’s standard of living when he or she lived with the stepparent.

What if the amount set by the Child Support Guidelines is too high or too low?

In certain other circumstances the court can order that more or less child support be paid than what the Child Support Guidelines require. For this to happen, a parent must show that the payments required by the Guidelines would cause “undue hardship”. Undue hardship means that the required payments would be very unfair and cause a very significant financial problem for either the parent receiving support or the parent paying it.

When a claim of undue hardship is made, the court will look at the standard of living of each parent’s household, including the income from a new spouse or live-in boyfriend or girlfriend, and compare each household’s standard of living against the other. Proving undue hardship is complicated, and you should speak with a lawyer.

Do you have to disclose your financial circumstances?

To obtain an order for child support, financial disclosure must be made. The paying parent must provide proof of his or her income, which usually includes paystubs, recent income tax returns and other financial documents. In some cases, such as where the parents are paying for “special or extraordinary” expenses or share the children’s time, the receiving parent will also be required to make financial disclosure.

What is an “interim” child support order?

After a court case is started, a parent can apply to court for an interim order for child support. The amount of the payments the court requires may be different than it requires after a trial when the best information about the parents’ incomes is usually available. Interim orders are meant to last until the claim is settled or goes to trial, and can usually be obtained relatively quickly. Interim orders remain in effect until they are either changed by another interim order or a final order is made at the end of the court case.

How long is child support paid for?

Child support is paid for as long as the child continues to be a “child” as defined by the legislation. In BC, a child is someone under the age of 19, the provincial age of majority, or who is 19 or older but is financially dependent on a parent. For example, a college student or an adult child with serious health problems may continue to qualify as a child even though they are older than the age of majority.

Can you get a child support order to cover the past?

Child support orders can be made to start at an earlier date. These are called “retroactive” orders. In general, the court will make a retroactive order when there is an obligation to pay child support that wasn’t met, or an obligation to pay a higher amount of support than what was paid, but usually for no more than three years before the date of the application for retroactive child support.

What if circumstances change and child support needs to change?

Either parent can apply to have an order or agreement about child support changed if there is a change in circumstances, such as an increase or decrease in someone’s income or a change in the children’s living arrangements. The law requires updated financial information to be exchanged each year if a parent, usually the parent receiving support, asks for or if there is a change of income. If there has been a change, the Child Support Guidelines should be consulted to determine what new amount of child support should be paid.

What can you do if child support isn’t paid?

If a parent doesn’t pay the child support owing under an order or an agreement, the Family Maintenance Enforcement Program can help you. Program staff will help you collect support payments that are owed and monitor a support order to make sure payments continue to be made. For more information on this, refer to script 132 on “Enforcing Orders and Agreements for Support”.

Where can you get help or more information?

• Family Justice Counsellors in Family Justice Centres throughout BC can help you with understanding the Child Support Guidelines, preparing a separation agreement, and obtaining a support order in Family Court. Their services are free. Phone 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria or toll-free 1.800.663.7867 elsewhere in BC, and ask to speak with a Family Justice Counsellor in the Family Justice Centre nearest you. Also see the Family Justice website at www.justicebc.ca/en/fam/.
• For more information about the Child Support Guidelines, a Child Support Office is available in Vancouver, Surrey, Kelowna and Nanaimo. The contact numbers are 604.660.2084 and 604.501.3100 in the lower mainland or toll-free 1.800.578.8511 and 1.888.227.7734.
• See info about Child Support from the federal Department of Justice website at www.canada.justice.gc.ca. Select “Programs and Initiatives” and then the “child support” link.
• See the Child Support section of the wikibook JP Boyd on Family Law, from Courthouse Libraries BC.

[updated October 2014]

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The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

The spouse of a person who has children from a previous relationship. A stepparent may qualify as a "parent" for the purposes of issues relating to child support and decisions about the care and control of the stepchildren under both the Divorce Act and the Family Law Act. See "parent" and "spouse."

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

A contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another into the future. A typical separation agreement is signed following a settlement reached through negotiation and deals with issues including guardianship, parenting arrangements, contact, support, the division of property, and the division of debt. See "family law agreements."

A mandatory direction of an arbitrator, binding and enforceable upon the parties to an arbitration proceeding, made following the hearing of the arbitration trial proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to challenge or appeal the award in court. See "appeal," "arbitration," and "family law arbitrator."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

(1) A means of conceiving a child other than by sexual intercourse, usually with medical or technological intervention, or (2) when someone requires help operating the photocopier.

A person who gives a gift or bequest to someone, freely and without expectation of payment in return.

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

Something which can be owned. See "chattels" and "real property."

A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

A regulation to the federal Divorce Act, adopted by every province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved.

Short for the Child Support Guidelines, a regulation to the federal Divorce Act, adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved.

A judge of the superior courts of British Columbia, being the Supreme Court and the Court of Appeal.

In law, a calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account," "bill of costs," "Certificate of Costs or Expenses" and "lawyer's fees."

The conditional transfer of the title to real property by an owner to another person in return for money given by that person as a loan, while retaining possession of the property. The party to whom title is given, the "mortgagee," usually a bank, is allowed to register the title of the property in their name if the person taking the loan, the "mortgagor," fails to make the required payments. See "encumbrance" and "real property."

In law, (1) a piece of draft legislation presented to the legislature for its approval,or (2) a lawyer's statement of account for services rendered to their client. See "account," "act," and "lawyer's fees."

In law, (1) a lawyer's bill to their client or a statement, or (2) a person's recollection of events.

A term used by the Child Support Guidelines to describe circumstances in which a child's time is shared equally or almost-equally between their parents or guardians, often resulting in an amount of support that is different than the table amount. See "child support," "Child Support Guidelines" and "table amount."

A term used by the Child Support Guidelines to describe circumstances where each parent or guardian has one or more children living with them most of the time. This results in an amount of support that is different than the table amount. See "child support," "Child Support Guidelines" and "table amount."

A duty, whether contractual, moral, or legal in origin, to do or not do something. See "duty."

In the context of family law, this phrase comes up in Child Support Guidelines as well as applications to waive court fees. The term "undue" essentially means excessive, exceptional, or disproportionate. for example, if someone would have to sacrifice a reasonable expense in their life in order to pay the amount in question, this would be an undue hardship. In the Child Support Guidelines this term describes circumstances when payment of the table amount of child support would cause financial difficulty for either the payor or the recipient of support, potentially justifying an award of support in an amount different than the table amount. See "child support," "Child Support Guidelines" and "table amount."

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

A step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any documents the other side requests before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.

(1) Information which establishes or tends to establish the truth of a fact, or (2) the conclusion of a logical argument. See "evidence" and "premises."

Any order made prior to the final resolution of a court proceeding by trial or by settlement; a temporary, rather than permanent or final, order. See "application" and "interim application."

An act; a statute; a written law made by a government. See "regulations."

The age at which a child becomes a legal adult with the full capacity to act on their own, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See "disability" and "infant."

A term under the Divorce Act referring to an order for child support or spousal support. See "child support" and "spousal support."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."