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Difference between revisions of "Child Support"
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#Does the person asking for the order have the right to claim child support? | #Does the person asking for the order have the right to claim child support? | ||
#Is the child entitled to receive child support? | #Is the child entitled to receive child support? | ||
# | #Does the person against whom the order is sought have a duty to pay child support? | ||
#How much support should the child receive? | #How much support should the child receive? | ||
#How long should | #How long should support be paid for? | ||
First, the court must decide that the person applying for a child support order, the ''applicant'', is able to make the application. Usually, this is just a matter of fitting into the definitions given in the legislation. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which the application is made for at least one year. Under the ''[[Family Law Act]]'', the applicant can be anyone included in the definitions of ''parent'' or ''guardian'', 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 and after the stepparent and parent have separated, not later than one year after separation. | First, the court must decide that the person applying for a child support order, the ''applicant'', is able to make the application. Usually, this is just a matter of fitting into the definitions given in the legislation. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which the application is made for at least one year. Under the ''[[Family Law Act]]'', the applicant can be anyone included in the definitions of ''parent'' or ''guardian'', 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 and after the stepparent and parent have separated, not later than one year after separation. | ||
Second, the court must find that the child qualifies as a ''child'' as | Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in the ''Divorce Act'', and under the ''Family Law Act'', the court must also find that the child is not a spouse and has not withdrawn from the care of their parents or guardians. | ||
It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892. | It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892. | ||
Third, the court must find that the person against whom the claim is made | Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions. | ||
If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first | If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, with the help of the parties' financial information, 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, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]]. | ||
Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements | Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements say 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 Law Act''," or "the child reaches the age of 19." The question of a stop date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of their parents, and the court must then consider the factors described earlier. | ||
The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take court | The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent. | ||
===Getting an order inside British Columbia=== | ===Getting an order inside British Columbia=== | ||
