The Legislation on Family Law

The most important legislation in family and divorce law are the provincial Family Law Act and the federal Divorce Act. There is also a very important federal regulation, the Child Support Guidelines, and an important academic paper, the Spousal Support Advisory Guidelines. You may also run into other laws, like the Name Act or the Partition of Property Act, which weren't written just for family law disputes but still relate to your situation.

This page describes the basic legislation on family and divorce law, and briefly reviews some of the important secondary legislation touching on family law issues.

The Primary Legislation

The Divorce Act, the Family Law Act and the Child Support Guidelines are central to family law. While some of the subjects covered by the Divorce Act and the Family Law Act overlap, there are significant distinctions between the two laws that you need to be aware of. The chapter The Legal System > The Law has a detailed discussion of the federal and provincial authority to make laws.

Only the Divorce Act deals with divorce. Only the Family Law Act deals with the guardianship of children and the division of property and debts. Both acts deal with the care of children, children's parenting schedules, child support and spousal support.

One of the most important distinctions between these two laws, as will be seen below, lies in how they define key words like spouse and child. Depending on the particular law you're dealing with, you may fall inside these definitions or outside of them.

The Divorce Act

The Divorce Act is a federal law that you can find, along with other federal laws, on the website of the federal Department of Justice or on CanLII, a free website for searching Canadian court decisions and legislation. The Divorce Act became law in 1985. A number of very important changes to the act became law on 1 March 2021 and changed how we talk about parenting children and the best interests of children. The current Divorce Act covers these main subjects:

• getting divorced,
• decision-making responsibility,
• parenting time and contact with children,
• moving away, with or without children
• child support, and
• spousal support.

The Divorce Act only applies to married spouses, people who are, or were, married to each other by a marriage commissioner or a religious official licensed to perform marriages. (If you're not legally married, the Divorce Act doesn't apply to you, and the Family Law Act is the only game in town.) The Divorce Act refers to children as children of the marriage. A "child of the marriage" is defined in section 2(1) as:

A child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

In other words, a "child of the marriage" is someone who is less than 19 years old — the age of majority in British Columbia — or who is 19 or older if the child cannot support themselves for some reason, like going to college or university. The definition of "child of the marriage" is expanded in section 2(2) of the Divorce Act to include stepparents.

Not only do you have to be married to ask for an order under the Divorce Act, you also have to be habitually resident in your province for at least one year before you can ask the court of your province for the order. If you've lived in your province for less than 12 months, and your spouse has been habitually resident in their province for at least a year, you can ask the court there for an order under the Divorce Act.

Married spouses can ask the court for:

• an order for their divorce,
• an order about decision-making responsibilities for any children of the marriage,
• an order about parenting time,
• an order that they pay or receive child support, and
• an order that they pay or receive spousal support.

If there is a court proceeding between married spouses, someone who is not a spouse — like a grandparent, an aunt or uncle, or another person with a special connection to a child of the marriage — can ask for an order that they have contact with the child. However, people who are not spouses must get permission from the court before they can ask for a contact order.

JP Boyd on Family Law provides extensive coverage of the Divorce Act, including a chapter on Divorce Act Basics.

The Family Law Act

The Family Law Act is a British Columbia law that you can find, along with other provincial laws, at the official government website of the Queen's Printer or on CanLII, a free website that lets you search Canadian laws and court decisions. The Family Law Act covers these basic subjects:

• determining who the parents of a child are,
• guardianship of children,
• parental responsibilities,
• parenting time and contact with children,
• moving away, with or without children,
• child support,
• managing children's property,
• spousal support,
• dividing property and debt,
• orders protecting people, and
• orders protecting property.

The Family Law Act applies to:

• married spouses, people who are, or were, married to each other by a marriage commissioner or a religious official licensed to perform marriages,
• unmarried spouses, people who live, or used to live, together in a romantic relationship,
• people who are the parents of a child together, and
• people who are the guardians of a child.

Unlike the Divorce Act, there are no rules requiring you to live in British Columbia for a certain amount of time before you can ask the court for an order under the Family Law Act.

Section 3 of the act says who is a "spouse:"

(1) A person is a spouse for the purposes of this Act if the person

(a) is married to another person, or

(b) has lived with another person in a marriage-like relationship, and

(i) has done so for a continuous period of at least 2 years, or

(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2) A spouse includes a former spouse.

Part 3 of the act has the rules for deciding who is a "parent." Most of the time, the parents of a child are the child's birth mother and biological father. (Section 26(2) lists the circumstances in which a man is assumed to be the biological father of a child, such as being married to the birth mother, and section 33 says when the court can order that a DNA test be conducted to determine whether a man is the biological father of a child.) When a child is conceived through assisted reproduction, a child's birth parents — depending on the arrangements people make — can include a donor of sperm, a donor of eggs, a surrogate mother and the spouse of a surrogate mother.

Section 1 of the act defines a child as "a person who is under 19 years of age." Section 146 expands that definition for the part of the act about child support, and says that "'child' includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians." ("Other reason" usually means that the adult child is going to college or university.)

The same section expands the definition of parent for the purposes of child support. Under this definition, "parent" can include someone who is a stepparent. A "stepparent" is "a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life."

Section 39 says who is assumed to be the guardian of a child:

(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.

(3) A parent who has never resided with the parent's child is not the child's guardian unless one of the following applies:

(a) section 30 [parentage if other arrangement] applies and the person is a parent under that section;

(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;

(c) the parent regularly cares for the child.

It's important to notice that while the parents of a child are usually each a guardian of a child, this is not always the case. However, the court can make an order under section 51 of the Family Law Act to appoint a person, including a parent, as a guardian of a child.

Someone who is a guardian — whether or not they are a parent, a married spouse or an unmarried spouse — can ask the court for:

• an order about parental responsibilities for any children, and
• an order about parenting time and contact with a child.

Someone who is a parent or a guardian of a child — whether or not they are a married spouse or an unmarried spouse — can ask the court for an order that they pay or receive child support.

Someone who is a married spouse or an unmarried spouse can ask the court for:

• an order that they pay or receive spousal support, and
• an order for the division of property and debt, as long as a person who is an unmarried spouse has lived with their partner for at least two years.

Anyone can ask the court for:

• a declaration about who the parents of a child are,
• an order that they have contact with a child,
• an order appointing them as the guardian of a child, and
• an order about the management of a child's property.

JP Boyd on Family Law provides extensive coverage of the Family Law Act, including a chapter on Family Law Act Basics.

The Child Support Guidelines

Often referred to as just "the Guidelines," the Child Support Guidelines is a federal regulation, adopted by all of the provinces except Quebec, that describes the rules that the courts must apply when making an order for child support.

The most important feature of the Guidelines is the child support tables that fix the amount of support payments according to the annual income of the person paying support, the payor, the province the payor lives in, and the number of children support is to be paid for. The Guidelines cover pretty much every issue involved in calculating the amount of child support, including determining income, paying for children's special expenses and extraordinary expenses, figuring out the amount of support payable when the parents have the children for an almost equal amount of time, and figuring out the amount payable when one or more of the children have their primary home with each parent.

This section talks about the basic principles of the Guidelines, the sharing of special expenses and extraordinary expenses, the calculation of income, and the circumstances in which the income of a parent's or guardian's new partner may be taken into account. It also provides an example of a typical child support order.

Basic principles

Before the Child Support Guidelines became law in 1997, a person asking for child support, the recipient, had to prove how much support they needed to cover the cost of raising the children and that the person from whom support payments were sought, the payor, had the ability to pay that amount. Now, the amount of an order, award or agreement for child support is based on the amounts set out in the tables attached to the Guidelines. The Guidelines and its tables have reduced arguments between recipients and payors about child support, and have helped to ensure that children in similar circumstances benefit from the payment of similar amounts of child support. Today, most disagreements about child support tend to focus on income, children's special expenses and extraordinary expenses, and paying child support for adult children.

In most cases, the amount of child support is calculated using the Guidelines tables. The tables are updated from time to time, and were most recently updated on 22 November 2017. (If you are using a printed version of the child support tables to figure out how much child support should be paid, make sure that your version includes the current table amounts!)

The Guidelines' key presumption is set out in section 3(1):

Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

This, however, is only a presumption, and can be challenged or rebutted, as is discussed in the next section in this chapter, Exceptions to the Child Support Guidelines. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross yearly income, their income before taxes and most other deductions, at the time the order is made.

Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order or agreement so that the amount of child support reflects the payor's current income. The payor would usually make the application if their income has fallen, while the recipient would usually make the application when the payor's income has increased. To avoid a situation where parents are continually making trips back to court to seek an adjustment of child support, it's a good idea to include a term in the court order or agreement that requires both parents to regularly exchange income information, normally every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligation is not based on the Guidelines amount for the total number of five children.

Finally, the amount of support payable is based only on the payor's income, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

Special expenses and extraordinary expenses

The basic amount of child support a parent pays is presumed to cover a wide variety of common day-to-day expenses associated with raising children: the child's share of housing costs, utilities, clothes and shoes, groceries, diapers, toiletries, school field trip fees, entertainment, haircuts, and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but costly, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, the parents may also be required to cover their respective portions of these other expenses, as long as they qualify as special expenses or extraordinary expenses under the Guidelines.

Special expenses and extraordinary expenses are defined in section 7(1) of the Guidelines:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Special expenses and extraordinary expenses are shared between the payor and recipient in proportion to their incomes. These parts of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, both parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.

If an expense is found to qualify as a special expense or an extraordinary expense, under the section 7(1) and section 7(1.1) definitions, the court may make an order that both parties pay extra money, in addition to the usual Guidelines amount of support, to cover all or a portion of the cost of the expense.

Qualifying expenses as "special expenses" or "extraordinary expenses"

Just because an expense appears to fall into one of the categories listed in section 7 of the Guidelines doesn't necessarily make it a shareable special expense or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense or extraordinary expense, get some legal advice or talk to the other parent first to see if they will agree to share in the expense.

Special expenses are the expenses listed in section 7(1)(a), (b), (c), and (e). When the court is asked to decide whether it should make an order that an extra amount, beyond Guidelines child support, should be paid to contribute to the cost of these expenses, it must think about the test in section 7(1) and consider:

...the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.

Extraordinary expenses are the expenses listed in section 7(d) and (f). When deciding whether the cost of primary- and secondary-school education expenses and extracurricular activities qualify as "extraordinary expenses," the court will apply described in section 7(1.1):

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

Here's a helpful summary of how section 7(1.1) works from a 2010 case from the Supreme Court, Piper v. Piper:

"Under section 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in section 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in section 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."

Reasonableness

For lower-income families, fewer expenses will be considered "reasonable." Daycare and medical and dental costs will almost always be considered necessary and reasonable.

For parents with more money, more expenses are likely to qualify as reasonable, including:

• cosmetic orthodontic work,
• dance, music, and art classes, swimming lessons, and summer daycamps,
• less-expensive team sports, like soccer, baseball, and basketball,
• basic high-school graduation costs, such as tickets and gown or tuxedo rentals, and
• basic post-secondary education costs, such as tuition fees for a local college or university, student fees, and textbook costs.

For parents with a lot more money, almost every big-ticket expense is likely going to be considered reasonable, including:

• multi-week summer camps and trips abroad,
• private school fees,
• expensive team sports, like hockey and horseback polo, and expensive solo sports like skiing and scuba diving, and
• post-secondary education costs, including meal plans and residence costs.

Necessity

Sometimes the needs of the child will be more important than the burden of paying the cost of the expense borne by the parents, and an expense will qualify as a shareable special expense or extraordinary expense whether the cost is a hardship to the parents or not. These expenses usually include things like:

• medical costs, including costs that aren't covered by MSP such as autism therapies,
• counselling services, where the counselling is necessary for the child's mental health,
• tutoring services, where the child needs the extra help to get through school, and
• lessons or coaching in arts and sports, where the child has a special talent that should be nurtured.

A driver training course, for example, is unlikely to qualify as an extraordinary expense on the basis of necessity, since you can learn to drive and obtain a driver's license without it, as was decided in a 2011 case, M.S.J. v. J.M.J. On the other hand, if a semester with Sylvan Learning Centre will mean the difference between passing or failing a grade, the tutoring would probably be considered a necessity.

Sharing qualifying expenses

Under section 7(2) of the Guidelines, expenses that qualify as special expenses and extraordinary expenses are generally shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or by the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure out how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.

The easiest way to calculate a parent's proportionate share is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.

Example

If one parent earns $75,000 per year and the other $25,000, the total pot available to the child is $100,000. Of that sum, the first parent contributes 75% and the second parent 25%. As a result, the first parent would be ordered to pay 75% of the cost of all qualifying expenses, and the second parent would be required to pay the remaining 25%.

Example

If one parent earns $48,000 per year and the other $62,000, the total of their incomes is $110,000. The first parent's income is 43.6% of the total, and the other parent's income is 56.4% of the total. The first parent would have to pay 43.6% of the cost of all qualifying expenses, and the second would have to pay the remaining 54.6% of those expenses.

It's important to know that the cost that is being shared is the net cost of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are sometimes subsidized for lower-income earners, and the amount paid by a parent is deductible from their income. Post-secondary expenses might be reduced by bursaries and scholarships, or be partly paid by an RESP. The cost of prescriptions might be offset by contributions from a workplace health and dental insurance plan. It is the net cost of the expense, after deducting any contributions and other savings, that parents share.

It's also important to know that sometimes the income of a parent's new partner may be taken into consideration in determining a parent's "means" in sharing a qualifying expense. In the 2000 Supreme Court case Baum v. Baum, the court held that the section 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the contribution of a parent's new partner. Also see the case of Scott v. Scott, another Supreme Court decision from 2000.

Calculating income

Before the court even looks at the Child Support Guidelines tables it has to decide what the parents' incomes are. The tables set out the amount of child support payable according to the payor's income, and both parents' incomes will be relevant if there are special expenses or extraordinary expenses, if each parent has the primary home of one or more children, or if the parents share the children's time more or less equally.

The Guidelines require that the court use the most up-to-date information available. Sections 15 to 20 of the Guidelines set out the rules the court must apply in determining income.

According to Rule 5-1 of the Supreme Court Family Rules and Rule 4 of the Provincial Court (Family) Rules, when someone makes an application for child support, the payor, or both the payor and the recipient, are required to disclose their financial circumstances using a court form called a Financial Statement. Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically:

1. the last three years' tax returns, and what's required is the complete income tax and benefit return, not tax return "summaries" or "informations,"
2. all notices of assessment and reassessment received for the last three tax years,
3. the party's most recent paystub, showing their earnings to date, or if the party isn't working, then their most recent WCB statement, social assistance statement, or EI statement, and
4. business records like financial statements and corporate income tax returns, if the party has a company.

The basic rule here is that a party's income for the purposes of the Guidelines is the amount stated at line 15000 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. Income might include bonuses, overtime, rental income, profit from stock options, company dividends, Workers' Compensation payments, long- and short-term disability payments, personal injury awards that relate to loss of income, pension income, government benefits, interest from an investment, and so forth, as well as employment and self-employment income.

Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. The amount of support paid in 2023 will be based on income earned and reported in 2022, and the amount paid in 2024 will be based on income from 2023. However, if a payor's current income can be known with certainty, such as if the payor is an employee who doesn't get bonus or commission income, child support can be determined using the payor's current income.

Government benefits

Payments from WCB, EI, CPP, Old Age Security, and social assistance all count as "income" under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Benefits are not considered income for basic child support purposes, although they may be taken into account when determining the sharing of special expenses and extraordinary expenses.

Fluctuating income

When a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the average of their income over the last three years.

Unexpected losses and gains

Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide to take this into consideration in setting the payor's income, and potentially not consider the loss or gain, if it was a one-time occurrence.

Court awards

If a payor has received an award from a civil court proceeding, such as for wrongful dismissal or for personal injury, the court may attribute the portion of the award allocated for lost wages to a payor's income. The whole amount of the award, including the parts relating to pain and suffering, will not be seen as income for the purposes of the Guidelines, just the part intended to compensate for lost wages.

Windfalls

Money received from an inheritance, the sale of a house, or a lottery win does not count as income under the Guidelines. Any interest or other investment income earned or that should reasonably be earned from the inheritance or lottery win would count as income.

Imputing income

To impute income means to attribute income to someone, above the income they say they earn, usually to ask for a support order based on that higher amount. Typically, someone asks the court to impute income to someone when the person:

1. works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns,
2. has quit or been fired from their job,
3. moves from full- to part-time work without a very good reason for the change,
4. is self-employed and either receives unpaid benefits from their company, like a company car, paid meals, or a cell phone, or doesn't report the full amount of money taken from the company,
5. has refused to provide full financial disclosure,
6. has or will have income from a trust,
7. has hidden or appears to have hidden some of their income, or
8. is not using resources at hand that could generate income, such as a vacant house that could be rented out or savings that could be invested.

If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special expenses and extraordinary expenses may be based on imputed income, including income imputed to the recipient.

The court can decide to impute income for the purposes of calculating child support in other circumstances, such as when the payor is intentionally underemployed or unemployed, is splitting their income with a new partner, or pays a lower tax rate than usual.

Underemployment and unemployment

Section 19(1) of the Guidelines says that:

The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse's property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

In other words, the court may decide that someone has a different income than that which they say they have if the person:

• has quit a job in order to avoid paying child support,
• has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, or
• has tried to reduce their income by claiming unreasonable deductions.

If you're going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in section 19(1) exist. If someone's underemployment or unemployment is caused by childcare responsibilities, the court will not usually impute income.

It's not enough merely to argue that one of the circumstances listed in section 19(1) exist, you have to be able to prove that the circumstance exists. The following factors were discussed in a 2003 Supreme Court case, Nahu v. Chertkow, in determining whether someone is intentionally underemployed or unemployed:

• the payor's education, training, and work experience,
• the payor's previous earnings and past borrowing of funds during unemployment,
• the payor's work history,
• the payor's spending patterns and lifestyle,
• the payor's efforts to upgrade their education and work qualifications,
• the nature and quality of the payor's attempts to obtain employment, and
• any evidence that the underemployment or unemployment is motivated by ill will towards the recipient.

This last point, about the payor's ill-will, has to do with the idea that the payor is able to earn more but chooses not to. In a 1999 Supreme Court case called Hanson v. Hanson, the court had this to say on the subject:

[14] The following principles apply when determining capacity to earn an income.

1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is "no answer for a person liable to support a child to say that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor" ...

2. When imputing income on the basis of intentional underemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as the availability of work, freedom to relocate and other obligations.

3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be earned on the job. ... [C]ourts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.

4. Persistence in [poorly paid] employment may entitle the court to impute income.

5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.

6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.

"Grossing-up" income

Section 19(1) of the Guidelines also says that:

The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.

Under these sections of the Guidelines, people who have a lower income tax obligation than usual, such as certain First Nations persons living on reserve who might pay no federal taxes, or persons who live in another country with a lower tax rate, can have their income grossed up to reflect this tax advantage when child support is determined.

The grossing-up process essentially involves figuring out the amount of money the person would have to earn to have the same after-tax income at the tax rates normally applicable to residents of British Columbia. This will result in income being imputed to the payor, at that higher amount, and a corresponding increase in the amount of child support that will be payable.

The math behind grossing up someone's income is a bit complex. Essentially, the idea is to figure out the amount of income the person would have to earn before taxes in British Columbia to receive the amount they earn after taxes. Think of it like this:

Example

Say Parent 1 earns $100,000 per year. As a resident of British Columbia, Parent 1 pays income tax at a rate of, for example, 40%. This means that Parent 1's income, net of taxes, is $60,000 per year.

Parent 2 also earns $100,000 per year. Parent 2, on the other hand, lives in Texas and has an income tax rate of, for example, 25%. This means that Parent 2's net income is $75,000 per year.

Income for the purposes of the Guidelines would normally be calculated for both Parent 1 and Parent 2 at a gross income of $100,000. In reality, though, Parent 1 has a lot less money after income taxes are paid than Parent 2 does. Parent 2 actually has a lot more money than Parent 1, and ought to pay child support based on this additional money.

Parent 2's income would be "grossed up" to figure out what income they would have to earn here to have an after-tax income of $75,000. Since Parent 2 would pay income tax at a rate of 40% here, the court would consider Parent 2 to have a gross income of $125,000 for the purposes of child support, since tax of 40% on a gross income of $125,000 leaves a net income of $75,000.

Parent 1 and Parent 2 both have incomes of $100,000 per year. Parent 1 will pay his base amount of support at that income, but Parent 2 will pay at a grossed-up income of $125,000 to reflect what they would have to earn in British Columbia to have the after-tax income of $75,000 they have living in Texas.

Grossing-up a payor's income can be a bit tricky, and requires a knowledge of the income tax laws applicable to First Nations payors earning income on First Nations reserve lands and to payors earning income outside of Canada. If you have a problem in this area, you should consider hiring a lawyer to help you.

"Grossing-down" income

The same idea about grossing income up applies, in reverse, to people who live in places with higher tax rates. Someone who lives in a place where they pay higher income taxes than they would if they lived in British Columbia can have their income grossed down to reflect the money they'd have to earn, living here, to have the same after-tax income as they do living there.

Grossing-down a payor's income is also tricky. If you have a problem in this area, you should consider hiring a lawyer to help you.

Child support and parents' new partners

Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the parent's obligation to pay child support and their proportionate share of the children's special expenses and extraordinary expenses. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are now on the hook for support and must contribute to the parent's payments.

Basic child support payments

The income of a parent's new partner is not included in calculating the amount of child support, nor is a payor's new partner obliged to pay child support. The new partner will not inherit the child support obligation in the event the parent dies, and a recipient of support won't be able to pursue the new partner for continuing or supplemental payments. If the new partner and the parent separate, however, the new partner might become obligated to pay child support if they qualify as a "stepparent" to the children. See the discussion of stepparents’ obligations in the first section in this chapter, Child Support.

When calculating the base amount of child support a parent must pay — that is, the parent's obligation under the Child Support Guidelines tables, before special expenses and extraordinary expenses — the court will only look at the parent's income. The income of the new partner is not taken into account.

"Undue hardship" claims

Section 10 of the Child Support Guidelines allows people to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause them undue hardship if the table amount was paid. Payors will argue that the base amount is too high, while recipients will argue that it is too low. If the court agrees, the court can make a child support order that is lower or higher than the amount in the tables. This chapter discusses exceptions to the Guidelines more thoroughly in the section, Exceptions to the Child Support Guidelines.

If undue hardship is claimed, the court must look at the standard of living in each parent's household, rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support. It just means that their income will be taken into consideration to see whether the usual table amount of support payable is too high or low.

Incomes in excess of $150,000

The tables provided in the Child Support Guidelines set out the amount of support owing by people who earn up to $150,000 per year. The Guidelines provide a mathematical formula for figuring out what parents earning more than $150,000 must pay, while people earning less than $12,000 pay nothing.

Section 4 of the Guidelines deals with parents who earn more than $150,000 each year. Under this section, the income, or lack of income, of a parent's new partner may be taken into account in deciding whether the formula gives a fair result. The calculation of support owing by parents with incomes in excess of $150,000 is discussed in more detail in Exceptions to the Child Support Guidelines.

Section 4(b)(ii) of the Guidelines says that when considering the amount payable on top of the basic amount for a person whose annual income is $150,000, the court should apply the formula but take into account:

... the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children ...

In other words, the income of a new partner can be taken into account, under the general heading of a person's "financial ability," in determining whether the formula amount is fair.

Special expenses and extraordinary expenses

Section 7 of the Guidelines allows for the sharing of the children's qualifying special expenses and extraordinary expenses between parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into account, among other things, "the necessity and reasonableness of the expense in relation to the means of the spouses and those of the child."

A parent's new partner's income can be taken into consideration in assessing the "means of the spouses," which is exactly what the court did in the 2000 Supreme Court case of Baum v. Baum. In that decision, the court held that means of the spouses should be interpreted broadly as including all of the "means" available to the paying parent, including the financial contribution of their new partner.

Again, the new partner will not be responsible to pay child support or a share of the children's special expenses or extraordinary expenses as a result; only the parent's obligations will be affected by their new partner's income.

Death of the payor

A number of readers have asked whether they will have any responsibility to make child support payments if their partner, who is a parent or guardian with an obligation to pay child support, dies. The simple answer to that question is no, they won't be responsible. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.

While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a "stepparent" of the child under the Family Law Act. The act says that all parents, guardians, and stepparents are required to support their children, but section 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least one year. In other words, someone who marries or begins to live with a paying parent may have an obligation if they have contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.

Agreements and orders for child support

Orders for child support

An order for child support typically contains the following elements:

• a statement of the names and birthdates of the children for whom support will be paid,
• a declaration of the payor's income, and of the recipient's income if their income is relevant,
• an order stating the Guidelines amount payable,
• an order about the exchange of income information, and
• an order about how long child support must be paid.

These elements look like this in a typical order made under the Divorce Act:

UPON the Court being advised that the children of the marriage are

Jesse Ann Doe, born on 1 March 2015, and

Sandra Alexandra Doe, born on 1 April 2017;

AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;

THIS COURT ORDERS that:

1. The Claimant, Jane Doe, payor, will pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2022 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children of the marriage" as defined by the Divorce Act; and,

2. The Claimant will provide to the Respondent a copy of her income tax return on the first day of May 2023 and continuing on the first day of May for each and every year thereafter, and copies of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment she receives in respect of those income tax returns within two weeks of her receipt of the same, and the parties will adjust the amount of child support payable by the Claimant to the Respondent as of the first day of June 2023, and continuing on the first day of June for each and every year thereafter for so long as the Claimant is obliged to pay child support to the Respondent.

Under the Family Law Act, the order would look like this:

UPON the Court being advised that the children are

Jesse Ann Doe, born on 1 March 2015, and

Sandra Alexandra Doe, born on 1 April 2017;

AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;

THIS COURT ORDERS that:

1. The Claimant, Jane Doe, payor, will pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2022 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the Family Law Act; and,

2. The Claimant will provide to the Respondent a copy of her income tax return on the first day of May 2023 and continuing on the first day of May for each and every year thereafter, and copies of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment she receives in respect of those income tax returns within two weeks of her receipt of the same, and the parties will adjust the amount of child support payable by the Claimant to the Respondent as of the first day of June 2023, and continuing on the first day of June for each and every year thereafter for so long as the Claimant is obliged to pay child support to the Respondent.

The point of the last paragraph of each of these sample orders is to require the payor to annually provide evidence of their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the order includes special expenses and extraordinary expenses, it will usually include the following additional elements:

• a declaration of the recipient’s income (including any spousal support they might be receiving),
• an order about which of the children's expenses, or the type of expenses, that qualify as special expenses and extraordinary expenses,
• an order stating the percentage contribution due for each parent to cover the children's special expenses and extraordinary expenses, and
• an order that both parents exchange income information each year.

Disclosure of income by both parents is also required in cases where one or more children live primarily with each parent and in cases where the parents share the children's time more or less equally.

It's a good idea to specify in a child support order whether the order is made under the Divorce Act or the Family Law Act as it could have an effect on a future application to change the original order. This was very important in the 2012 Court of Appeal case of Yu v. Jordan.

Agreements for child support

Separation agreements, like all family law agreements, have two types of statements. The recitals are statements that talk about the parties, their relationship and the circumstances in which the agreement was signed. The operative clauses in an agreement are the parts that say what each party has promised to do.

The recitals to a separation agreement about child support would include statements like these:

D. Jane Doe is a plumber working for ABC Plumbing, earning about $72,000 per year.

E. John Doe is a graphic artist working for Sunny Skies Art and Design, earning about $40,000 per year.

F. Jane and John have two children, Jesse, who is 7, and Sandra who is 5.

The operative clauses about child support might say something like this:

15. Jane will pay child support to John in the amount of $1,092 per month, beginning on 1 April 2022 and continuing on the first day of each month thereafter for so long as Jesse and Sandra remain "children" as defined by the Family Law Act.

16. Jane will give John a copy of her income tax return by no later than May 1st each year, as well as copies of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, for so long as Jane is required to pay child support to John.

17. Jane and John will adjust the amount of child support payable by Jane to John after reviewing Jane's income tax return, and the adjusted amount will be effective as of June 1st each year.

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of child support, the amounts of the children's special expenses and extraordinary expenses, and the date when payments will start. These details are important so that the orders and agreements about child support can be enforced.

Child support tables and calculators

The simplified Child Support Guidelines Tables for British Columbia are available from the website of the federal Department of Justice. The federal government has published an online child support calculator.

The provincial government also operates the BC Child Support Info Line that offers free information about child support and the child support tables. Contact the Info Line at:

• Lower Mainland: 604-660-2192
  
• Outside the Lower Mainland: 888-216-2211

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Child Support Guidelines

Links

• Child Support Guidelines Tables for British Columbia
• Federal Department of Justice's Child Support Table Look-up
• Dial-A-Law Script "Child support"
• Legal Aid BC's Family Law website's information page "Child & spousal support"
  • Under "Child support"

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 24 August 2022.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.

The Guidelines, and the exceptions to the Guidelines tables, are discussed in a lot more detail in the section Child Support.

The Spousal Support Advisory Guidelines

The Spousal Support Advisory Guidelines is not a law. It is an academic paper that describes a number of mathematical formulas that can be used to calculate how much spousal support should be paid and how long spousal support should be paid, once a person's entitlement to receive spousal support has been proven.

Although the Advisory Guidelines is not a law, the courts of British Columbia and many other provinces routinely rely on the Advisory Guidelines formulas when making decisions about spousal support and the Advisory Guidelines cannot be ignored if you have a problem involving the payment of spousal support.

The Advisory Guidelines formulas, and the way the courts have dealt with the Advisory Guidelines, are discussed on more detail in the chapter Spousal Support > The Advisory Guidelines.

Other Legislation Related to Family Law Issues

This segment discusses some of the secondary legislation relating to marriage, children, child protection, the enforcement of orders and agreements relating to support payments, real property, wills and estates, and name changes.

Marriage

The federal Marriage (Prohibited Degrees) Act sets out the degrees of consanguinity — relatedness by blood — a couple cannot have if they are to marry each other. The federal Civil Marriage Act defines marriage as the "union of two persons" rather than "the union of a man and a woman," allowing same-sex couples to marry, and makes related changes to other federal legislation like the Divorce Act, allowing same-sex couples to divorce, and the Income Tax Act.

The provincial Marriage Act deals with the formalities of marriage, and covers such things as who is entitled to marry people, marriage licences, and the age at which a couple can legally marry.

Children

The provincial Age of Majority Act sets the age of majority at 19. The provincial Infants Act describes the legal capacity of children, such as their ability to enter into legally binding contracts or marriage settlements.

The provincial Adoption Act deals with such things as who can give a child up for adoption, who may adopt a child and the general ins and outs of the adoption process.

The provincial Parental Responsibility Act says that parents whose children have been convicted of causing damage or loss of property may be held responsible for loss caused their children's offences, up to a maximum of $10,000.

Child Protection

On 1 October 2002, the Children's Commissioner, which investigated serious injuries or deaths suffered by children, and the Office of the Child, Youth and Family Advocate, which investigated issues involving children in the care of or involved with governmental and private agencies, were replaced by the Office for Children and Youth. On 18 May 2006, this was in turn replaced by the Representative for Children and Youth, operating under the Representative for Children and Youth Act. The goals of the representative, who has significant oversight powers, are to:

1. foster respect for the fundamental rights of all children and youth in British Columbia;
2. support and promote the rights of children and youth in the care of the state;
3. promote awareness and understanding of key principles in the United Nations Convention on the Rights of the Child;
4. monitor the effectiveness and responsiveness of services and programs in British Columbia;
5. work collaboratively with public bodies, including the Chief Coroner and the Public Guardian and Trustee, to build an integrated, #responsive process for the review and investigation of critical injuries and death; and,
6. draw on lessons learned to support and promote prevention initiatives and best practices with respect to intervention.

The provincial Child, Family and Community Service Act gives the government, specifically the Ministry for Children and Family Development, the power to apprehend children believed to be suffering from child abuse or neglect, or who are at risk of child abuse or neglect. The act regulates the conditions under which children can be seized, the conditions in which they may be placed in the care of the government, and the authority and powers of child protection workers.

Enforcement of Child Support and Spousal Support

The provincial Family Maintenance Enforcement Act establishes the Family Maintenance Enforcement Program, an government agency with the authority to enforce support orders, and sets the extent of that authority. The provincial Court Order Enforcement Act sets out the ways in which money awarded under a judgment can be collected, such as by liens against property, the garnishment of wages and so forth.

The provincial Interjurisdictional Support Orders Act allows support orders made outside of British Columbia to be registered in this province for enforcement. It also lets someone affected by that order to start a process here that may result in the variation of that order in the court that originally made the order. The act does not apply to all support orders, only to the orders of the countries, provinces and states which have a reciprocal agreement with British Columbia.

Real Property

The provincial Land (Spouse Protection) Act protects the rights of marries spouses and unmarried to their interest in the family home by allowing them to file an entry on the title of the property, but the protection ends once the parties divorce.

The provincial Land Title Act deals with all aspects of real property in British Columbia, including the conditions of holding valid title to a piece of land, placing and removing encumbrances (like liens and mortgages) on the title of a property, and the conditions under which a Certificate of Pending Litigation can be placed on title. The Partition of Property Act gives someone who owns property jointly with someone else the right to force the sale of that property over the objections of the other owner.

Wills and Estates

Marriage, divorce and living in an unmarried relationship for at least two years can affect how property is distributed through a will and how property is distributed when someone dies without a will, called dying intestate. Two pieces of provincial legislation are important here, the Wills Act and the Estate Administration Act. The Wills Act says that:

15 A will is revoked by the marriage of the testator, unless

(a) there is a declaration in the will that it is made in contemplation of the marriage, or

(b) the will is made in exercise of a power of appointment of property which would not in default of the appointment pass to the heir, executor or administrator of the testator or to the persons entitled to the estate of the testator if the person died intestate.

16 (1) In this section, "spouse" includes a person considered by a testator to be the testator's spouse.

(2) If in a will a testator

(a) gives an interest in property to his or her spouse,

(b) appoints his or her spouse executor or trustee, or

(c) confers a general or special power of appointment on his or her spouse,

and after the making of the will and before the testator's death

(d) a judicial separation has been ordered in respect of the marriage,

(e) the marriage is terminated by a decree absolute of divorce, or a judgment granting a divorce under the Divorce Act (Canada) for which a certificate was or could have been issued under that Act, or

(f) the marriage is found to be void or declared a nullity by a court

then, unless a contrary intention appears in the will, the gift, appointment or power is revoked and the will takes effect as if the spouse had predeceased the testator.

A testator is a person who makes a will.

The Estate Administration Act deals with the distribution of the estate of someone who dies intestate, that is, without a will. This is a critical piece of legislation because a certain amount of the dead person's estate is automatically allotted to his or her spouse, regardless of whether they are together or have been separated for 2 years or 20 years. Section 85 says that:

(2) This section applies if an intestate dies leaving a spouse and issue.

(3) If the net value of the person's estate is not greater than $65 000, the estate goes to the spouse.

(4) If the net value of the person's estate is greater than $65 000, the spouse is entitled to $65 000, and has a charge on the estate for that sum.

(5) After payment of the sum of $65 000, the residue of the estate goes as follows:

(a) if the intestate dies leaving a spouse and one child, 1/2 goes to the spouse;

(b) if the intestate dies leaving a spouse and children, 1/3 goes to the spouse.

(6) If a child has died leaving issue and the issue is alive at the date of the intestate's death, the spouse takes the same share of the estate as if the child had been living at the date.

The provincial Wills Variation Act allows close relatives, including unmarried spouses, who have been left out of someone's will to apply to court for an order giving them some of the dead person's estate.

Names and Change of Name

The provincial Name Act is the law that deals with changes of name, both for a married spouse following divorce and for anyone who hankers to be called something different. (The process is fairly simple for a spouse following divorce.) The Vital Statistics Act talks about the registration of new births and about the naming of infants, and should be read if you're thinking of calling your child something different like Moon Unit or Blue Ivy.