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.

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, 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. 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.

The ''Divorce Act'' only applies to people who are or were married to each other, including 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: that is, the spouses must be or have been legally married, and at least one spouse must have lived in the province where the court action is started for at least one year. Applications under the ''Divorce Act'' can only be heard by the Supreme Court, not the Provincial 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" in order to be eligible for support. There are a couple of important definitions in s. 2(1) that apply in determining whether a child is a child of the marriage:

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

#child support can be owing from 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 (19 in British Columbia), 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.

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 the 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 that 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:

#the age of the adult child,

#whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,

#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries, RESPs or other savings, and the like,

#the child's academic <span class="noglossary">performance</span> and dedication to his or her studies,

#both parents’ financial situation, and

#any plans the parents may have made for the child's post-secondary schooling while they were still together.

*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.

*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-secondary education.

#the marriage was short,

#the stepparent's relationship with the child broke down shortly into the marriage,

#the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,

#the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,

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

#the parent had extended health and dental coverage for the child through the parent's employment.

#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 his or her estate.

#whether the recipient's need for support will survive the payor's death,

#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,

#whether any other means exist to meet the recipient's needs.

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

*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 much support should the child receive?

*How long should the child receive support?

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.

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.

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.

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. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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 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 he or she can keep a log of time spent on the child support claim.

When a parent who is entitled to receive child support goes on social assistance, 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 support the child, as they have the legal obligation to do so, rather than the taxpayer, and the government will usually come knocking on the other parent's door.

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 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 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.

A parent can only be subject to a single order to pay child support for 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 than he or she is 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 he or she becomes an adult able to sue someone at the age of 19 in British Columbia.

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 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; s.149(2)(b) says that a child can apply for a support order.

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''.

* [http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services Family Maintenance Program]