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Difference between revisions of "Child Support"
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→Getting a child support order
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*Is the child entitled to receive child support? | *Is the child entitled to receive child support? | ||
*Is the person against whom the order is sought obliged to pay child support? | *Is the person against whom the order is sought obliged to pay child support? | ||
*How much support should the child receive? | |||
*How long should the child receive support? | *How long should the child receive support? | ||
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. | 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 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''Divorce Act'', and under the ''Family Law Act'', the court must also find that the child is not a spouse and has not withdrawn from the care of his or her parents or guardians. | 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''Divorce Act'', and under the ''Family Law Act'', the court must also find that the child is not a spouse and has not withdrawn from the care of his or her parents or guardians. | ||
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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. | 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 | If the first three conditions have been met, the court must then figure out how much the payor should pay. The court must first make a finding as to the payor's annual income, 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 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 is otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier. | 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 is otherwise "unable to withdraw from the charge" of his or her 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, step-parents. 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 step-parent 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 proceedings against the biological parent before it will make any orders against a step-parent. | |||
===Getting an order inside British Columbia=== | ===Getting an order inside British Columbia=== | ||
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. Whichever court the parent or guardian wants to proceed in, he or she 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]]. | 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, he or she 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]]. | ||
===Getting an order outside British Columbia=== | ===Getting an order outside British Columbia=== | ||
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#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. | #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 | 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/pi/fcy-fea/sup-pen/enf-exe/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 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]]''. | 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, Zimbabwe, 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. See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] on [[CanLII]] or the [http://www.bclaws.ca/default.html BC Laws] website, for the current list. | The countries that will cooperate with a proceeding under the ''[[Interjurisdictional Support Orders Act]]'' are: South Africa, Zimbabwe, 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. | ||
* Canada – all of the provinces and territories; | |||
* 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 | |||
* Asia – Hong Kong, Republic of Singapore | |||
See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] on [[CanLII]] or the [http://www.bclaws.ca/default.html 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 [http://www.isoforms.bc.ca www.isoforms.bc.ca]. | The British Columbia Reciprocals Office, along with all of the forms required by the ''Interjurisdictional Support Orders Act'', can be found at [http://www.isoforms.bc.ca www.isoforms.bc.ca]. | ||