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Difference between revisions of "Child Support"
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First, the court must decide that the person applying for a child support order, the ''applicant'', is able to make the application. Usually, this is just a matter of fitting into the definitions given in the legislation. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which the application is made for at least one year. Under the ''[[Family Law Act]]'', the applicant can be anyone included in the definitions of ''parent'' or ''guardian'', and, if the claim is being made against a stepparent, the claim must be made within one year after the stepparent last contributed to the child's upkeep and after the stepparent and parent have separated, not later than one year after separation. | First, the court must decide that the person applying for a child support order, the ''applicant'', is able to make the application. Usually, this is just a matter of fitting into the definitions given in the legislation. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which the application is made for at least one year. Under the ''[[Family Law Act]]'', the applicant can be anyone included in the definitions of ''parent'' or ''guardian'', and, if the claim is being made against a stepparent, the claim must be made within one year after the stepparent last contributed to the child's upkeep and after the stepparent and parent have separated, not later than one year after separation. | ||
Second, the court must find that the child qualifies as a ''child'' as 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''Divorce Act'', and under the ''Family Law Act'', the court must also find that the child is not a spouse and has not withdrawn from the care of their parents or guardians.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''Divorce Act'', and under the ''Family Law Act'', the court must also find that the child is not a spouse and has not withdrawn from the care of their parents or guardians. | ||
It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892. | |||
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. | ||