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Spousal support is money paid by one spouse to the other to help that spouse cover his or her living expenses or as compensation for financial decisions made during the parties' relationship. The amount of child support payable is usually fixed according to tables contained in the Child Support Guidelines, which set 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.
When a person who is obliged to pay child support fails to meet some or all of that obligation, a debt begins to accumulate and the amount owing is called the payor's ''arrears'' of support. People generally have two different goals when arrears begin to mount up: the person responsible for paying support likely wants the court to reduce or cancel the arrears, while the person receiving the support will want the court to force the payor to pay what's owing.


This chapter will discuss the basics of child support, child support orders under the ''Divorce Act'' and the ''Family Law 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.
This page provides an introduction to the problem of arrears, and a discussion of the reduction and cancellation of arrears of child support is followed by a discussion of the collection of arrears.


==Introduction==
==Introduction==


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 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 have to pay for more 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 and other people who may be responsible for supporting the child.
If child support is owed under a court order or an agreement, a failure to pay the support owing is a breach of that order or agreement, and, in the case of orders, it's contempt of court as well. The courts and society as a whole place a high value on the financial support of children, and both take an extremely dim view of anyone who defaults on such an obligation in the absence of a very good excuse or some very sympathetic circumstances.


Child support is a payment made by one parent or guardian, 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 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. Child support is not a fee paid in exchange for time with the child; child support is entirely different and unrelated to parenting time, contact or access.
A person who owes arrears of child support, a ''payor'', will likely be interested in the ways that the outstanding amount can be reduced, while a person to whom support is owing, a ''recipient'', will be interested in collecting on the arrears. A person who owes arrears will generally have a difficult time convincing the court to forgive all or some of his or her debt. On the other hand, collecting arrears can be difficult as well, if for no other reason than the fact that you can't get blood from a stone. Unless the payor has another source of funds to draw upon, a recipient may discover that the outstanding support will never be recovered.


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 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.
Despite these barriers and obstacles, it is possible for a payor to have his or her arrears reduced and, sometimes, cancelled altogether. At the same time, recipients have access to some very powerful and effective enforcement tools to collect outstanding arrears of support.


An order for child support can be made under s. 15.1 of the federal ''Divorce Act'' or s. 149 of the provincial ''Family Law Act'', or a couple can agree on child support in a separation agreement. Either way, the amount of support awarded must, with only a few exceptions, conform to the rules set out in the federal Child Support Guidelines.
===Orders for Support===


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 in the pages that follow. Certain changes to the tables were most recently updated on 31 December 2011. For most people, the changes resulted in an increase in the amount of child support payable.
Orders for the payment of child support are enforceable like any other order of the court. Someone who breaches a Supreme Court order can be punished for contempt of court. As well, under the ''Family Law Act'', the Supreme Court and the Provincial Court can:


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 precedence.
#require the payor to provide security for his or her compliance with the court order;
#pay any expenses incurred by the recipient as a result of the payor's actions;
#pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions;
#pay up to $5,000 as a fine; or,
#if nothing else will ensure the payor's compliance with the order, jail the payor for up to 30 days.


==The ''Divorce Act''==
Unfortunately for people who would rather be jailed than pay, s. 231(3)(c) says that:


The ''Divorce Act'' only applies to people who are or were married to each other, including parents and a parent and a stepparent who are married to each other. 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 spouses' divorce : the spouses must be or have been legally married, and the spouse making the application must have lived in the province where the application is made for at least one year. Applications under the ''Divorce Act'' can only be heard by the Supreme Court.
<blockquote><tt>imprisonment of a person under this section does not discharge any duties of the person owing under an order</tt></blockquote>


===Qualifying for Child Support===
Since orders for support require the payment of money, arrears can also be enforced as a judgment debt under the provincial ''Court Order Enforcement Act'' for up to 10 years after the monthly payment of support is no longer required, often when the child reaches the age of majority.


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" 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:
Payors can apply for an order reducing arrears that have accumulated under a court order under both the ''Divorce Act'' and the ''Family Law Act''. Such applications must be made using the act under which the support order was made.


<blockquote><tt>"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;</tt></blockquote>
===Agreements for Support===
<blockquote><tt>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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;</tt></blockquote></blockquote>


As well, s. 2(2) of the act says that:
Arrears that have accumulated under a separation agreement are owed as a result of a contractual obligation to provide support. A separation agreement is a contract that can be enforced in the courts just like any other contract.


<blockquote><tt>For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses or former spouses includes</tt></blockquote>
Agreements for support are most easily enforced by filing them in court, after which they can be enforced as if they were court orders. Although agreements can still be enforced under the law of contracts, it's a lot simpler to file them in court. Section 148(2) of the ''Family Law Act'' says:
<blockquote><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>


Taken together these definitions mean that:
<blockquote><tt>A written agreement respecting child support that is filed in the court is enforceable under this Act and the ''Family Maintenance Enforcement Act'' as if it were an order of the court.</tt></blockquote>


#child support can be owing from an adoptive parent, as well as a natural parent;
As a result, the Supreme Court and the Provincial Court can:
#child support can be owing by stepparents (spouses 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 because the child is going to college or university, or because the child has a serious, chronic illness which prevents him or her 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:
#require the payor to provide security for his or her compliance with the agreement;
#pay any expenses incurred by the recipient as a result of the payor's actions;
#pay up to $5,000 for the benefit of another party or a child whose interests were affected by the payor's actions;
#pay up to $5,000 as a fine; or,
#if nothing else will ensure the payor's compliance with the agreement, jail the payor for up to 30 days.


#the age of the adult child;
Payors can apply under s. 174 of the ''Family Law Act'' for an order reducing arrears that have accumulated under an agreement that has been filed in court just like they can for arrears accumulating under an order.
#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 spouses' financial situation; and,
#any plans the spouses 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.
===The Family Maintenance Enforcement 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.
Although recipients can enforce orders and agreements for child support on their own, most of the time recipients will give that job to the Family Maintenance Enforcement Program, a provincial government program under the provincial ''Family Maintenance Enforcement Act'' which has been contracted out to an American company, Maximus (Themis), not that you'd know this from the government website. FMEP is free service for recipients that is largely funded by late fees and penalties charged to delinquent payors.


===Statutory Provisions===
FMEP has no discretion to change the orders and agreements that are filed with it for enforcement, although it will make important, judge-like decisions about who is and isn't entitled to receive child support. FMEP cannot increase or decrease the amount of a child support obligation and it cannot reduce or cancel arrears of child support.


The primary sections of the Divorce Act dealing with child support are these.
==The Reduction and Cancellation of Arrears==


*s. 2: definitions
Payors may apply to court to have their arrears cancelled or reduced; technically, this is in some ways an application to vary the order or agreement for child support under which the arrears accumulated rather than an independent order about the arrears.
*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


==The ''Family Law Act''==
===Arrears under the ''Divorce Act''===


A parent or guardian can apply for child support under the ''Family Law Act'' whether the parties are married spouses, unmarried spouses or in another unmarried relationship, and if they were in no particular relationship with each other at all. 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 made a guardian of a child.
Section 17 of the ''Divorce Act'' says this about varying orders for child support:


Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.
<blockquote><tt>(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,</tt></blockquote>
<blockquote><blockquote><tt>(a) a support order or any provision thereof on application by either or both former spouses; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.</tt></blockquote></blockquote>
<blockquote><tt>(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.</Tt></blockquote>
<blockquote><tt>(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.</tt></blockquote>
<blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote>


===Qualifying for Child Support===
The ''Divorce Act'' does not deal expressly with arrears; applications under the act to reduce arrears are simply variation applications. The test the court will apply is similar to the test it applies for orders made under the ''Family Law Act''.


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 s. 146 defines ''child'', ''parent'' and ''guardian'' as follows:
===Arrears under the ''Family Law Act''===


<blockquote><tt>"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;</tt></blockquote>
Unlike the ''Divorce Act'', the ''Family Law Act'' deals with the question of arrears directly. Section 174(1) of the act says this:
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<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:
<blockquote><tt>(1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.</tt></blockquote>
<blockquote><tt>(2) For the purposes of this section, the court may consider</tt></blockquote>
<blockquote><blockquote><tt>(a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the reasons why the person responsible for paying support cannot pay the arrears owing, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) any circumstances that the court considers relevant.</tt></blockquote></blockquote>
<blockquote><tt>(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.</tt></blockquote>
<blockquote><tt>(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under section 11.1 of the ''Family Maintenance Enforcement Act'', on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest.</tt></blockquote>


<blockquote><tt>"stepparent" means 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.</tt></blockquote>
A similar section of the old ''Family Relations Act'' was described as a "complete code" regarding the reduction or cancellation of arrears under that act, meaning that the only ground on which a court can reduce or cancel arrears was "gross unfairness," as set out in s. 96(2). I expect the courts will take the same approach to s. 174 of the ''Family Law Act''.


However, s. 147 puts some really important limits on support for minor children and on when stepparents are and aren't responsible to pay child support:
The courts have interpreted "gross unfairness" under the ''Family Relations Act'' to mean that the payor is not only incapable of repaying the arrears but is also unlikely to be able to repay them in the foreseeable future without suffering severe financial hardship. If you are asking the court to make an order of reducing arrears, you must be prepared to prove that it would be not just unfair but grossly unfair for you to have to pay off the arrears, and you must be prepared to address the criteria set out in s. 174(2).


<blockquote><tt>(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote>
*What efforts have you made to pay the child support you were required to pay?
<blockquote><blockquote><tt>(a) is a spouse, or</tt></blockquote></blockquote>
*Why did you wait until arrears had accumulated before you tried to vary the child support order?
<blockquote><blockquote><tt>(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.</tt></blockquote></blockquote>
*Why can you not pay your arrears now?
<blockquote><tt>(4) A child's stepparent does not have a duty to provide support for the child unless</tt></blockquote>
*Are there any other circumstances, such as catastrophic business losses or the unintended loss of your employment, changes in the children's residence, or new financial obligations in relation to your family which the court should take into account?
<blockquote><blockquote><tt>(a) the stepparent contributed to the support of the child for at least one year, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>


Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated.
Be prepared to provide to the court a Financial Statement summarizing all of your assets and income, liabilities and expenses, if you intend to show the court that you cannot pay your arrears. Complete financial disclosure is absolutely essential.


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:
==Collecting Arrears of Support==


#both parents are responsible to pay child support, no matter the nature of the parents' relationship;
The collection of debts and enforcement of judgments occupies a whole course at law school and is not a simple matter. The provincial government has, however, established an agency responsible for enforcing support obligations, the Family Maintenance Enforcement Program. Someone entitled to receive support under an order or agreement can sign up with this program and the program will tend to the enforcement support without a great deal of further involvement on the part of the recipient.
#child support can be payable by guardians and stepparents;
#the definition of "stepparent" includes anyone who has been the spouse of a parent and contributed to the support of his or her child for at least one year;
#the phrase "contributed to the support 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 support of the child and can only be made after the stepparent and parent have split up;
#child support can be payable by a parent, a guardian and a stepparent, and by more than one stepparent, at the same time;
#a duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home; 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.


On 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:
FMEP is free for recipients. All you have to do is file your order or filed separation agreement with the program and fill out an application form. FMEP will take the matter from there, and the program is authorized by the ''Family Maintenance Enforcement Act'' to take whatever legal steps are required to enforce an ongoing support obligation, and track and collect on any outstanding arrears, plus interest accumulating on those arrears.


#the age of the adult child;
Under the ''Family Maintenance Enforcement Act'', FMEP has the authority to commence and conduct any court proceedings that can be undertaken by a private creditor, as well as some unique actions that the program alone can take. Among FMEP's collection powers are:
#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 financial situations of the child's parents, guardians and stepparents; and,
#any plans the parties 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 parties 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.
#garnishing the payor's wages;
#collecting from a corporation wholly owned by the payor;
#redirecting federal and provincial payments owed to the payor, like GST or income tax rebates, to the recipient;
#prohibiting a payor from renewing his or her driver's licence;
#directing the RCMP to seize a payor's passport;
#registering a lien against personal property and real property owned by the payor; and,
#obtaining an order for the payor's arrest.


===Stepparents and Child Support===
While it is possible to undertake collection or enforcement proceedings on your own, this will cost money and time and possibly require you to hire a lawyer and bear that expense as well. Since any private collection efforts you might take may interfere with efforts being made on your behalf by FMEP, recipients enrolled with FMEP are required to obtain the permission of the program's director before they can take independent enforcement actions.


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.
More information about enforcing orders can be found in the page ___________ and at the website of the Department of Justice, which includes a helpful overview of support enforcement mechanisms in Canada.


A 2004 case of the British Columbia Supreme Court, ''H.J.H. v. N.H.H.'', a case 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 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:
===Separation Agreements===


#the marriage was short;
Section 148(3) of the ''Family Law Act allow'' a party to an agreement, usually a separation agreement, to file the agreement in the Provincial Court or in the Supreme Court. An agreement that is filed in court can be enforced as if it were an order of the court. It is not necessary for a court proceeding to have been started before an agreement can be filed in court.
#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.


The ''Family Law Act'' helps to clear up some of these confusing issues. Section 147(5) says:
FMEP will enforce agreements for support, however they require that an original copy of the agreement be filed in court and sent to them with the court's stamp before they can enforce the agreement.


<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
More information about enforcing agreements can be found in the chapter _____________ .
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>


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 account 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.
===Orders Made Outside British Columbia===


===Statutory Provisions===
Section 20 of the ''Divorce Act'' says that an order made in a divorce action has legal effect throughout Canada. It also provides that such an order may be filed in the courts of any province and be enforced as if it were an order of the courts of that province. In other words, if your divorce order was made in Alberta and contains a term requiring child support to be paid, you can register that order in the Supreme Court of British Columbia and it will have the same effect and be enforceable here as if it were an order of the courts of British Columbia.


The primary sections of the ''Family Law Act'' dealing with child support are these.
The provincial ''Interjurisdictional Support Orders Act'' allows orders for child support made under provincial laws elsewhere in Canada, and in certain foreign states, to be filed in our courts and enforced as if they were British Columbia orders. The reciprocating states under the ''Interjurisdictional Support Orders Act'' are South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom, 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.


*s. 1: definitions
Foreign orders which are filed in this province may be enforced by FMEP as if they were orders made by the courts of British Columbia. See the chapter ___________ more information.
*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. 173: child support has priority over spousal support
 
==Getting a Child Support Order==
 
There are five things the court must consider before a child support order can be made.
 
*Does the person asking for 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, the ''Applicant'', is able to make the application. Usually, this is just a matter of fitting into the definitions given in the legislation. Under the ''Divorce Act'', the Applicant must be a spouse who has lived in the province in which they 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.
 
Second, the court must find that the child qualifies as a ''child'' as defined by the ''Family Law Act'' or as a ''child of the marriage'' as defined by 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 his or her parents or guardians.
 
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.
 
If the first three conditions have been met, the court must then figure out how much the payor should pay. This is pretty easy for parents, but can be more difficult for guardians who are not parents and for stepparents. The court must first make a finding as to the payor's annual income, usually 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, such as when payors are guardians or stepparents, 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 parties. These and more exceptions are discussed in the page _______ .
 
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 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 Law 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.
 
===Getting an Order inside British Columbia===
 
A parent or guardian seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. Whichever court the parent wants to proceed in, the parent must start a court proceeding. The process for starting a court proceeding is described in the page _______ .
 
===Getting an Order outside British Columbia===
 
A parent or guardian living with a child in British Columbia 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 a court proceeding in the place where the other parent lives; or,
#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 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 Law Act'' or the ''Divorce Act''.
 
Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the place 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''.
 
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 payments, 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 another parent or guardian, the provincial government would prefer that this person pick up the tab rather than the taxpayer, 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 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 $10,800 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 often 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, 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.
 
==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. 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 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 and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''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 he or she reaches the age of majority, 19 in British Columbia, and becomes an adult able to sue someone.
 
There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the provincial ''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 Supreme Court, in which the judge concluded that:
 
<blockquote>"...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."</blockquote>
 
===When There isn't an Order Between the Parents===
 
Nothing prevents a child from applying for child support, as long as the child would normally 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 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 Law Act''. Section 147(1) says that "each parent and guardian of a child" is responsible for supporting that child; s. 149(2)(b) says that child can apply for a support order.
 
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 Law Act'' and the Child Support Guidelines say that all of a child's parents and guardians are liable for supporting the 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 legislation on family law issues 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 to ensure that children benefit "from the financial means of both spouses after separation." In other words, payment 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. 147 of the ''Family Law 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 court proceeding 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
 
<blockquote>Let's say the parents are separated and the child is living with one of his or her parents.</blockquote>
<blockquote>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 court proceeding 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.</blockquote>
<blockquote>If a child is older than 19 but still qualifies as a ''child'' under s. 146 of the ''Family Law 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.</blockquote>
<blockquote>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 or being in a married or unmarried spousal relationship with someone will undermine the adult child's chances of success.</blockquote>
 
Example #2
 
<blockquote>Now let's say that the child is younger than 19 and is not living with his or her parents.</blockquote>
<blockquote>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.</blockquote>
<blockquote>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 independently 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.</blockquote>
 
===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 Law 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. 146 of the ''Family Law 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==
==Further Reading in this Chapter==
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* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
FLA, DA, ISOA, federal income tax act, CSG, COEA, COIA, limitation act
FLA, DA, COEA, FMEA, ISOA


===Links===
===Links===


* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
Reciprocals office, FMP FMEP, tax bulletin, CRA
* list of related public resources
DoJ website on collecting support, FMEP, Themis/Maximus
 


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{{JP Boyd on Family Law Navbox|type=chapters}}
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