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Difference between revisions of "Child Support"
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===Qualifying for child support=== | ===Qualifying for child support=== | ||
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 | 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: | ||
<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> | <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> | ||
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<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> | <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, | As well, section 2(2) of the act says that: | ||
<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> | <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> | ||
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<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> | <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> | ||
However, | 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: | ||
<blockquote><tt>(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote> | <blockquote><tt>(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote> | ||
<blockquote><blockquote><tt>(a) is a spouse, or</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(a) is a spouse, or</tt></blockquote></blockquote> | ||
<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> | <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> | ||
<blockquote><tt>...</tt></blockquote> | |||
<blockquote><tt>(4) A child's stepparent does not have a duty to provide support for the child unless</tt></blockquote> | <blockquote><tt>(4) A child's stepparent does not have a duty to provide support for the child unless</tt></blockquote> | ||
<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>(a) the stepparent contributed to the support of the child for at least one year, and</tt></blockquote></blockquote> | ||
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===Securing a child support obligation=== | ===Securing a child support obligation=== | ||
Under | 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, | *order that a charge be registered against property, | ||
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*order that child support continue to be paid after the payor's death and be paid from their estate. | *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 | 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 recipient's need for support will survive the payor's death, | *whether the recipient's need for support will survive the payor's death, | ||
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===Child support when the payor dies=== | ===Child support when the payor dies=== | ||
When a payor dies, the recipient can apply to court for an order under | 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 the recipient's application or to vary or terminate a continuing obligation. | 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 the recipient's application or to vary or terminate a continuing obligation. | ||
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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. | 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]'', | 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). | ||
===When there isn't an order between the parents=== | ===When there isn't an order between the parents=== | ||
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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. | 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 | 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. | ||
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. | 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. | ||
Third, a child seeking a child support order must qualify as a ''child'', as defined by | 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. | ||
This leaves two options: | This leaves two options: | ||