Child Support

Child support is money paid by one parent to the other to help defray the expenses associated with raising the parents' children. The amount of child support payable is usually fixed according to tables contained in the Child Support Guidelines, which sets support according to the number of children and the payor's income. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

This chapter will discuss the basics of child support, the criteria for child support orders under the Divorce Act and the Family Relations Act, and briefly look at how to get a child support order inside and outside of British Columbia. This chapter also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support.

Introduction

After a couple separates, the couple usually finds that their individual financial situations have gotten worse. Instead of the family income paying for one rent cheque, one phone bill, one electricity bill and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably bear a disproportionate amount of the child's expenses for things like school fees, food and clothing. Child support is intended to help distribute the cost associated with raising a child between the child's parents.

Child support is a payment made by one parent (the payor) to the other (the recipient) to defray the costs the recipient bears as a result of the child, and the payment of child support consequently helps to improve the child's living conditions. Child support is not a supplement to spousal support; it is money paid for the benefit of the child, not the parent with whom the child mostly lives. Child support is not a fee paid in exchange for time with the child; access and child support are entirely different, unrelated issues.

Child support is payable on the principle that both parents have a duty to financially contribute to the child's upbringing. The simple fact of biological parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.

An order for child support, also called "child maintenance" and "palimony," may be made under s. 15.1 of the federal Divorce Act or ss. 88 and 91 of the provincial Family Relations Act. A couple may also agree on the payment of child support in a separation agreement. Either way, the amount of support awarded must conform to the rules set out in the federal Child Support Guidelines.

The Guidelines contain a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are set out in the chapter Child Support > Exceptions to the Guidelines. Certain changes to the Child Support Guidelines took effect on 1 May 2006, and the tables were most recently updated on 31 December 2011. These are discussed in the next chapter, Child Support > The Guidelines. For most people, the changes resulted in an increase in the amount of child support payable.

Both the Divorce Act and the Family Relations Act require the courts to give child support priority over spousal support when a parent makes an application for both orders. In other words, if there isn't enough money to pay both, child support will take precedence.

The Divorce Act

A court can only make an order for child support under the Divorce Act if it has or had the jurisdiction to make an order for the divorce of the child's parents: the parents must be or have been legally married, and the parent making the application must have lived in the province where the application is made for at least one year. Applications for relief under the Divorce Act can only be heard by the Supreme Court.

In the Divorce Act, children are referred to as "children of the marriage." A child must fall within the act's definition of a "child of the marriage" in order to be eligible for support. There are a couple of important definitions in s. 2(1) which apply in determining whether a child is a child of the marriage:

"age of majority", in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age; "child of the marriage" means 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; As well, s. 2(2) of the act says that:

For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses or former spouses includes (a) any child for whom they both stand in the place of parents; and (b) any child of whom one is the parent and for whom the other stands in the place of a parent. Taken together these definitions mean that:

child support can be owing from an adoptive parent, as well as a natural parent; child support can be owing by stepparents (people who "stand in the place of a parent"); child support is payable until a child reaches the age of majority in the province where the child lives; and, child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care. On this last point, the Divorce Act says that an adult child can continue to be eligible for child support as long as he or she cannot "withdraw from the charge" of his or her parents. The two main reasons why a child might not be able to withdraw are the pursuit of post-secondary education, or a serious, chronic illness which prevents the child from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies him or her as a "child of the marriage" include the following:

the age of the adult child; whether the academic program is full- or part-time, and whether the program is connected to the child's future employment; the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like; the child's academic performance and dedication to his or her studies; the parents' financial situation; and, any plans the parents may have made for the child's post-secondary schooling while they were still together. In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program.

As far as "age of majority" is concerned, keep in mind that it is the provinces which have the authority to set the age of majority, not the federal government. In British Columbia, the age of majority is 19. In other provinces the age of majority is 18.

Statutory Provisions

The primary sections of the Divorce Act dealing with child support are these.

s. 2: definitions s. 4: jurisdiction to make child support orders s. 5: jurisdiction to change orders s. 15.1: child support s. 15.3: child support has priority over spousal support s. 17: variation proceedings Back to the top of this chapter.

The Family Relations Act

A parent can apply for child support under the Family Relations Act whether the parent is married to the other parent, in a common law relationship with the other parent, or in no particular relationship with the other parent at all. People other than parents can also apply for child support if they are caring for the child, including grandparents who have custody of their grandchildren or people who have been made a guardian of a child.

Both the Supreme Court and the Provincial (Family) Court and the provincial court can make orders for child support under the Family Relations Act.

Definitions play an important role in determining eligibility and responsibility for child support under the Family Relations Act, just as they do under the Divorce Act. Section 88 of the Family Relations Act states that each parent of a child is responsible for the support of that child, and s. 1(1) defines a "child" and a "parent" as follows:

"child" means a person who is under the age of 19 years; "parent" includes (a) a guardian or guardian of the person of a child, or (b) a stepparent of a child if (i) the stepparent contributed to the support and maintenance of the child for at least one year, and (ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child; Section 1(2) expands on this last definition and says that:

For the purpose of paragraph (b) of the definition of "parent" in subsection (1), a person is the stepparent of a child if the person and a parent of the child (a) are or were married, or (b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender. The definition of "child" is modified by s. 87 of the Family Relations Act to include children who are at or older than the age of majority in certain certain circumstances:

"child" includes a person who is 19 years of age or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few of important points come from the case law on these definitions:

these definitions make both parents responsible to pay child support, no matter the nature of the parents' relationship; child support can be payable by guardians and stepparents; the definition of "stepparent" includes anyone who has contributed to the support of the child for at least one year, and therefore includes same-sex partners and anyone who has otherwise stood in loco parentis to the child; the phrase "contributed to the support and maintenance of the child for at least one year" does not mean for one whole, consecutive calendar year; any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the maintenance of the child; child support can be payable by a parent and a stepparent, and by more than one stepparent, at the same time; there is no distinction between the duty of a parent and a stepparent, meaning that a natural parent's obligation doesn't necessarily take priority over the stepparent's obligation or relieve the step-arent from that obligation; and, child support can be payable after the child turns 19 if the child is unable to withdraw from the care of his or her parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondry education. With regard to this last point, the factors a court will consider in determining whether a child's academic career continues to qualify the child for support include the following:

the age of the adult child; whether the academic program is full- or part-time, and whether the program is connected to the child's future employment; the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like; the child's academic performance and dedication to his or her studies; the parents' financial situation; and, any plans the parents may have made for the child's post-secondary schooling while they were still together. In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected that the child would take an advanced degree, child support can be payable for more than one degree program, but this is the exception rather than the rule.

Stepparents and Child Support

The Family Relations Act plainly states that stepparents can be responsible for paying child support just as biological parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the act's definitions of "parent," "stepparent," and people who otherwise stand "in the place of a parent" can be simultaneously responsible for paying child support for the same child. In fact, there are a few cases in which parents have engaged in serial long-term relationships, each of which are long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, H.J.H. v. N.H.H., offers some guidance for stepparents trying to stick-handle around this issue. In H.J.H., the parties had been married for less than three years when they separated. Each had been previously married, and the problem centred around the wife's child from a previous relationship and whether the husband should have to support the child. The court found that the husband, who qualified as a stepparent under the act, was not responsible for paying support, because of the combined effect of the following factors:

the marriage was short; the stepparent's relationship with the child broke down shortly into the marriage; the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent; the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage; the child's biological parent was paying support; and, the parent had extended health and dental coverage for the child through the parent's employment. In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological parent's obligation into account when assessing child support against a stepparent, and require stepparents only to make a sort of top-up payment rather than pay the full amount required by the Guidelines.

Statutory Provisions

The primary sections of the Family Relations Act dealing with child support are these.

s. 1: definitions s. 9: interim orders s. 20: changing or cancelling oders s. 87: the definition of "child" for the purposes of child support applications s. 88: each parent has the obligation to support their children s. 91: who may apply for a child support order s. 96: variation proceedings Back to the top of this chapter.

Getting a Child Support Order

There are five issues a court must consider before a child support order can be made.

Does the person seeking the order have the right to claim child support? Is the child entitled to receive child support? Is the person against whom the order is sought obliged to pay child support? How long should the child receive receive support? How much support should the child receive? First, the court must find that the person applying for a child support order has the standing to make the application. This is a matter of definition, described above. Under the Divorce Act, the applicant must be a married person who has lived in the province in which they the application is made for at least one year. Under the Family Relations Act, the applicant can be anyone included in the definitions of "parent," and, if the claim is being made against a stepparent, the claim must be made within one year after the stepparent last contributed to the child's upkeep.

Second, the court must find that the child qualifies as a "child" as defined by the Family Relations Act, or as a "child of the marriage" as defined by the Divorce Act.

Third, the court must find that the person against whom the claim is made is liable to pay child support. This is also a matter of fitting within the definitions.

Fourth, if the first three conditions have been met, the court must consider how long the payor's obligation should last. This issue is not usually argued, as both the Divorce Act and the Family Relations Act have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements limit themselves by providing that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the Divorce Act," "the child is no longer a child as defined by the Family Relations Act," or "the child reaches the age of 19."

The question of a termination date for support usually only crops up where the child is an adult engaged in post-secondary studies or otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier.

Finally, the court must fix the amount of the child support which is payable. The court must first make a finding as to the payor's annual income, usually with the help of the parties' Financial Statements, and then fix the amount of support payable according to the tables set out in the Child Support Guidelines based on the number of children and the payor's income. There are exceptions to this basic rule, such as when payors have their children for more than 40% of the children's time or if custody of the children is split between or shared by the parents. These and more exceptions are discussed in the chapter Child Support > Exceptions to the Guidelines.

Getting an Order inside British Columbia

A parent seeking a child support order can apply for that order in either the Supreme Court of British Columbia or the Provincial (Family) Court. Whichever court the parent wants to proceed in, the parent must start a legal action. The process for starting a law suit is described in the chapter The Legal System > Starting an Action.

Getting an Order outside British Columbia

A parent living with a child in BC who wants to get child support from someone living outside of the province has three choices:

start the application process here, in British Columbia, using the provincial Interjurisdictional Support Orders Act; start an action in the jurisdiction in which the other parent lives; or, start an action here under the Divorce Act or the Family Relations Act, obtain a child support order, and try to enforce that order in the jurisdiction where the other parent lives. The Interjurisdictional Support Orders Act allows a person living in BC to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out a bunch of paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the Reciprocals Office where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be the Family Relations Act or the Divorce Act.

Only certain jurisdictions have agreed to the Interjurisdictional Support Orders Act process. If the country where the other parent lives hasn't made an agreement with British Columbia about child support orders, someone who wants to get a child support order will normally have to start an action in the place where the other parent lives. This will require hiring a lawyer in that country, and the law that will apply will be the laws of that country, not the Family Relations Act or the Divorce Act.

The countries that will cooperate with a proceeding under the Interjurisdictional Support Orders Act are: South Africa, Zimbabe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom and Northern Ireland, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. (Check the Interjurisdictional Support Orders Regulation, at the BC Laws website, for the current list.)

The British Columbia Reciprocals Office, along with all of the forms required by the Interjurisdictional Support Orders Act, can be found at www.isoforms.bc.ca.

Income Tax Considerations

It used to be the case that the person paying child support could claim an income tax deduction for his or her support, while the recipient had to claim it as taxable income. On 25 April 1997, the federal Income Tax Act was amended to do away with this rule, and now child support payments are neither deductible for the payor nor taxable for the recipient.

These changes do not apply to court orders or family agreements that were made before 1 May 1997, when the Child Support Guidelines came into effect. If those orders or agreements are varied at any point after 30 April 1997, however, the new rules will apply and the provisions for child support will become tax neutral.

The portion of a lawyer's bill attributable to obtaining, increasing or enforcing a child support order is tax deductible. The cost of defending a claim for child support is not deductible. Read the Canada Revenue Agency's Interpretation Bulletin IT-99R5 for the fine print.

To claim this deduction, the lawyer must write a letter to the CRA setting out what portion of his or her fees were attributable to advancing a child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case, so that he or she can keep a log of time spent on the child support claim.

Child Support and Social Assistance

When a parent entitled to receive child support goes on welfare, the government agrees to provide support for that parent and his or her child. If there is someone else who might be obliged to support the child, such as the other parent, the provincial government would prefer that this person pick up the tab rather than the tax payor, and the government will usually come knocking on the other parent's door.

Recipients of Social Assistance Applying for Child Support

If you are applying for social assistance or are receiving social assistance in British Columbia, you are required to sign a form that allows the government agency responsible for social assistance to take whatever steps are required to collect any child support payments you may be entitled to and keep the child support it collects. This is called "assigning" your child support rights. You may be allowed to keep a portion of the child support that the government collects in addition to your social assistance payments; your case worker will tell you how much.

The collection of child support payments for people on social assistance is run by the Family Maintenance Program. (This is a different organization than the Family Maintenance Enforcement Program which enforces child support payments between parents.) FMP has the authority to pursue child support however it sees fit and can apply for orders or apply to vary child support orders on your behalf. You will be required to co-operate with FMP's actions, but they will be responsible for managing any court applications they begin.

Applying for Child Support from a Recipient of Social Assistance

You can apply to receive child support from a parent who is receiving social assistance, but don't except to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $8,100 per year.

Even if you're not likely to get a lot of money out of the other parent, it's often a good idea to make the application and get an order, since the order will at least establish the payor's obligation to provide child support. It's usually easier to ask for an increase in the amount payable later on, when the payor is back on his or her feet, than it to apply for an original child support order. As well, some people who might be normally responsible to pay support (like a stepparent or someone in a common-law relationship with a parent) may lose their obligation to pay support under the Family Relations Act if the application isn't made within a year of the end of the relationship or the person's last contribution to the child's upkeep. It can be critical to get an order that child support be paid early on.

Children's Right to Claim Child Support

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the the parent. (This is the basic reason why the court will not uphold an agreement in which one parent agrees not to pursue a claim for child support in return for the abandonment of the other person's "parental rights." Parents cannot bargain away rights that do not belong to them.) It follows, then, that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

When There is an Order Between the Parents

A parent can only be subject to a single order to pay child support with respect to a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if his or her parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less that he or she is required to pay, "arrears" build up. The arrears are the sum of the money that should have been paid according to the court order but wasn't paid. Arrears are a judgment debt, just like any other debt owing because of a court order which requires someone to pay money to someone else.

Judgment debts can be enforced under the provincial Court Order Enforcement Act, which allows the debtor's wages and benefits to be garnished, real property to be sold and personal property to be liquidated to pay off a judgment debt. Interest, calculated under the Court Order Interest Act, will accrue on judgments debts.

A child who is the subject of a child support order can apply to enforce any arrears as a judgment debt. The child can apply to enforce the old order starting when he or she reaches the age of majority (19 in British Columbia) and becomes an adult able to sue or be sued.

There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the Limitation Act, the claim must be brought within 10 years of the child first being able to apply to enforce the judgment debt. In other words, the claim must be made before the child turns 29. The case that discusses this is Schmitke v. Schmitke, a 1993 decision of the BC Supreme Court, in which the judge concluded that:

"...the right to bring an action for the enforcement of child maintenance is the right of the child. Since the child is 'a person under a disability' within the meaning of s. 7 of the Limitation Act, the running of time is postponed so long as she is a minor." B. When There isn't an Order Between the Parents Nothing prevents a child from applying for child support, as long as the child would be entitled to receive child support. The explanation that follows is a bit complicated, so be patient.

First, the child cannot apply for child support under the Divorce Act, because that act only applies to "spouses," defined as people who are or who used to be legally married to each other. Under s. 15.1 of the act, the court can only order "a spouse" to pay child support.

The only other law which might apply is the Family Relations Act. Section 88(1) says that "each parent of a child" is responsible for supporting that child. Section 91(1) says that "a person" can apply for a support order "on his or her own behalf."

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

Why would the court make this assumption? Think of it like this. The Divorce Act, the Family Relations Act and the Child Support Guidelines say that both parents are liable for supporting a child. In fact, s. 215 of the Criminal Code makes it an offence to fail to provide a child with the "necessaries of life."

The family law legislation also assumes that the payment of support by one parent under the Guidelines is not going to be a complete payment of all of the child's needs. Section 1(b) of the Guidelines says that the purpose of the Guidelines is ensure that children benefit "from the financial means of both spouses after separation." In other words, payments according to the Guidelines child support tables are not assumed to cover all of a child's costs, and the parent receiving the support payments is assumed to contribute towards the child's needs as well.

Third, a child seeking a child support order must qualify as a "child," as defined by s. 87 of the Family Relations Act, in order to claim child support. Although the court cannot grant a child support order if the child doesn't qualify as a child within the meaning of the act, children under the age of 19 are under a legal disability which means they cannot start a law suit and apply for child support on their own.

This leaves two options. Either the child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of his or her parents and therefore still qualifies as a "child" entitled to receive support, or the child is a minor and applies for support through a "litigation guardian," formerly known as a guardian ad litem. The first option would probably work, but the second is problematic as the court must approve the appointment of litigation guardians and it would likely refuse to do so if the child still lived with one of his or her parents.

Let's look at two examples to see how this all works.

Example #1 Let's say the parents are separated and the child is living with one of his or her parents.

In a case like this, the parent with whom the child is living has the responsibility of applying for support. As the child is under the age of 19, the child is cannot start a law suit without the assistance of a litigation guardian. However, since the parent the child is living with is responsible for applying for child support and litigation guardians must be appointed by the court, the court would likely to refuse to appoint a litigation guardian on the basis that the application is just a smoke screen for the parent's obligation to apply on behalf of the child.

If a child is older than 19 but still qualifies as a "child" under s. 87 of the Family Relations Act (typically because the child is ill or disabled and cannot work or because the child is going to college or university), the child could certainly apply for child support. The child is over the age of majority and is able to start an action without a litigation guardian.

The adult child will, however, have to prove that he or she is in financial need. The court will not make a support order automatically. Having a job, being married or in a common-law relationship with someone will undermine the adult child's chances of success.

Example #2 Now let's say that the child is younger than 19 and is not living with his or her parents.

In a case like this, the parents would be responsible for paying support to the child but the child would have to start an action to claim child support, and would have to be represented by a litigation guardian. Even assuming that the court is prepared to appoint a litigation guardian, getting a child support order is not necessarily a slam dunk.

There are a few cases when minor children — children under the age of majority — have been found not to entitled to receive child support. Typically, this happens when a child has chosen to move out, has found a job and is living independent of his or her parents. A financially self-sufficient child who has left his or her parents' home may not be entitled to receive child support payments from them, especially if the child has refused to maintain a relationship with his or her parents.

Summary

That was all a bit complicated. Here's what it boils down to.

Children will not be able to apply for a child support order when there's an existing child support order. If arrears have accrued under an existing child support order, the child can apply to collect those arrears as a judgment debt under the Court Order Enforcement Act, but only after the child has turned 19. The claim must be brought within 10 years of the child becoming able to make the claim. Children can only claim new child support orders under the Family Relations Act. They cannot apply under the Divorce Act. Children who live at home with both parents cannot apply for child support. A child bringing a claim for child support must qualify as a "child" within the meaning of s. 87 of the Family Relations Act. Children who have left home and live with neither parent will have to establish financial need before the court will make a child support order. The court will not make the order automatically. Adult children will also have to show financial need before the court will make a support order. If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

Further Reading in this Chapter

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