Difference between revisions of "Child Support"

}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]] (the Guidelines), which sets support according to the number of children and the income of the person paying support. 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 section discusses the basics of child support, and child support orders or agreements under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at how to get a child support order inside and outside of British Columbia. It 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. The obligation to pay child support for adult children is also discussed.

Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also discuss [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].

 

Look for explanations under this heading to read about recent changes to family law affecting the information provided in this section.

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone <span class="noglossary">bill</span>, one electricity <span class="noglossary">bill</span>, 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 have to pay for more of the child's expenses for things like school fees, food and clothing, as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support helps to maintain or improve the child's living conditions. Child support is not a supplement to spousal support; it's money that is paid for the benefit of the child, not the parent with whom the child lives.

Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.  

Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and virtually unrelated to parenting time or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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 and people who are guardians and not parents, 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 can be made under section 15(1) of the federal ''[[Divorce Act]]'' or section 149 of the provincial ''[[Family Law Act]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, 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 described later in this chapter. The tables were most recently updated on November 22, 2017. For most people, the changes resulted in a small increase in the amount of child support payable.

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses, and both obligations survive an assignment into bankruptcy.

<span style="color:#D2691E">'''Important changes'''</span> <br />

Under the changes to the ''Divorce Act'' that took effect on 1 March 2021, "custody" is now known as ''decision-making responsibility'' and "access" is now known as ''parenting time'', for people who are or used to be married to each other, or as ''contact'' for other people. As a result of these changes, the language used in the Child Support Guidelines has also changed. "Split custody" is now known as ''split parenting time'' and "shared custody" is now known as ''shared parenting time''.

Child support can be ordered under section 15(1) of the ''Divorce Act'' but only if:  

* the parents (or one parent and one step-parent) are or have been legally married, and

* at least one of the parents or a step-parent have lived in the province continuously for at least one year immediately before the court action is started.  

A divorce action can only be started in Supreme Court, not Provincial Court.  

Parents who do not qualify to apply for child support under the ''Divorce Act'' (or who do not want to go that route) can still apply for child support under the ''Family Law Act'' either in the Provincial Court or Supreme Court.   

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

Taken together these definitions mean that:

*child support can be owing from an adoptive parent, as well as a natural parent,

*child support is payable until a child reaches the age of majority in the province where the child lives (19 in British Columbia), and

*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them as a "child of the marriage" include the following:

*the age of the adult child,

*both parents’ financial situation, and

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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

Many post-secondary institutions consider that 60% of a full course load is “full-time” and the courts usually go along with this.

Although for dependent children over 19 child support is presumed to be the Guideline table amount, section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

*s. 2: definitions

*s. 4: jurisdiction to make child support orders (child support is a kind of corollary relief)

*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

A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses, or if they were in no particular relationship with each other at all but had a child together. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.

Definitions play an important role in determining eligibility and responsibility for child support under the ''[[Family Law Act]]'', just as they do under the ''[[Divorce Act]]''. Section 147 of the ''[[Family Law Act]]'' says that each parent and guardian of a child is responsible for the support of that child, and section 146 defines ''child'', ''parent'', and ''guardian'' as follows:

<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>

Section 146 gives a definition of ''stepparent'' for the definition of parent and says that:

However, section 147 puts some really important limits on support for minor children, and on when stepparents are and aren't responsible to pay child support:

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.  

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 important points come from the case law on these definitions:

*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other (there are some exceptions where child support for adult children is concerned).

 

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

The ''[[Family Law Act]]'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the Act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, the parties had been married for less than three years when they separated. Each had been previously married, and the problem centered 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 stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from his previous marriage,

*the child's biological parent was paying support, and

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into <span class="noglossary">account</span> when assessing child support against a stepparent, look at the obligation of any non-parent guardians, and require stepparents only to make a sort of top-up payment rather than pay the full amount required by the Guidelines.

Under section 170, the court may make a number of additional orders when it is making an order for child support that can help to ensure that child support continues to be paid, including after the death of the payor. The court may:

*order that a charge be registered against property,

*require a payor with life insurance to maintain that policy and specify that the other parent or a child will be the beneficiary of the policy, or

*order that child support continue to be paid after the payor's death and be paid from their estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under section 171(1), the court must consider:

*whether the payor's estate is sufficient to meet the recipient's needs, taking into <span class="noglossary">account</span> the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support.  See ''Family Maintenance Enforcement Act'', Section 26.

When a payor dies, the recipient can apply to court for an order under section 171(3)(b) that the payor's support obligation will continue and be paid from their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend against the recipient's application or apply to vary or terminate the continuing obligation.

*s. 1: definitions

*s. 146: more definitions

*s. 147: duty to pay child support

*s. 148: agreements about child support

*s. 149: orders about child support

*s. 150: determining how much child support should be paid

*s. 152: varying orders about child support

*s. 170: securing a child support obligation  

*s. 173: child support has priority over spousal support

There are five things the court must consider before a child support order can be made:

#Is the child entitled to receive child support?

#How much support should the child receive?

#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.

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 the 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 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 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 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 a court action against the biological parent before the court will make any orders against a stepparent.

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].

#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',

#start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and try to enforce that order in the place where the other parent lives.

The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia 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 paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html 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 British Columbia's ''Family Law Act'', or (if the other parent is outside Canada) the ''Divorce Act''.

Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the non-Canadian jurisdiction 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 a court proceeding 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 Law Act]]'' or the ''[[Divorce Act]]''.

* United States of America — all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa, and the US Virgin Islands,

* Pacific Ocean — Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea,

* Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland,

* Caribbean — Barbados and its Dependencies,

* Africa — South Africa, Zimbabwe, and

 

 

==Income tax considerations==

 

 

To claim this deduction, the lawyer must write a letter to the CRA setting out what portion of their fees were attributable to advancing or enforcing 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 they can keep a log of time spent on the child support claim.

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then

*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.  

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:  

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>

<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>

<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>

<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>

<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>

===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 or disability social assistance, but don't expect 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 $12,100 per year. Social assistance or disability assistance payments, which are non-taxable, would be subject to ''gross up'' for child support calculation purposes. (''Grossing up'' is explained more in the [[Child Support Guidelines]] section of this chapter, but it's essentially a process for increasing the figure used in calculating someone's child support obligation when they do not pay as much tax as a typical Canadian on all or some of their income.)

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

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 parent. It follows from this 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 someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, and allows real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', SBC 2012, c 13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see section 3(1)(l).

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support, but it is a bit complicated.

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 married to each other. Under section 15.1 of the act, the court can only order a spouse to pay child support. The only other law that might apply is the ''[[Family Law Act]]''. Section 147(1) says that "each parent and guardian of a child" is responsible for supporting that child; section 149(2)(b) says that a child can apply for a support order.

Third, a child seeking a child support order must qualify as a ''child'', as defined by section 147 of the ''[[Family Law Act]]'', in order to claim child support. While the court cannot grant a child a support order if the child doesn't qualify as a child within the meaning of the Act, it is also the case that children under the age of 19 are under a ''legal disability'', which means they cannot start a court proceeding and apply for child support on their own.

#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).

#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society's Family Law website's information page "Child & spousal support"]

** Under "Child support", see "What are the child support guidelines and how do they work?"

{{REVIEWED | reviewer = [[JP Boyd]], March 6, 2021}}