Difference between revisions of "Child Support"

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent or mortgage payment, one phone <span class="noglossary">bill</span>, one electricity <span class="noglossary">bill</span>, one gas <span class="noglossary">bill</span>, one cable <span class="noglossary">bill</span> and so forth, the same amount of income must now cover two rent payments, two phone bills, two electricity bills, two cable bills and two cable bills. If a child lives mostly with one parent, that parent will inevitably wind up paying for more of the child's expenses for things like school fees, food and clothing, as well as accommodation. 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, including stepparents.

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 paying for the child's needs. The payment of child support is intended 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. Of course, there's often some overlap between the recipient's expenses, and the child’s expenses, like the cost of groceries and the cost of utilities.  

Child support can be ordered under section 15.1 of the ''Divorce Act'' but only if:  

A claim for orders under the ''Divorce Act'' only be started in the Supreme Court. The Provincial Court cannot deal with claims under the ''Divorce Act''.

<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>

Many post-secondary institutions consider that 60% of a full course load is “full-time” and the courts usually go along with that approach.

*section 4: the court's authority to make child support orders

*section 5: the court's authority to change orders

Section 146 also gives a definition of ''stepparent'' for the definition of "parent," and says that:

*Child support can be paid after a child turns 19 if the child is unable to withdraw from the care of their parents because of illness, a reasonable delay in finishing high school, or attendance at a post-secondary school.

A 2004 case of the British Columbia Supreme Court, [http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.], decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In H.J.H., 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:

In most cases, stepparents won't be let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into <span class="noglossary">account</span> when figuring out how much child support a stepparent should p[ay, 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.

*The phrase "contributed to the support of the child for at least one year" does not mean for a whole, continuous calendar year. The 1999 case of [https://canlii.ca/t/1d290 Hagen v. Muir] talks about this issue.

*Child support obligations may end for an adult child if the child makes a decision to stop having a meaningful relationship with the parent who pays support. The 1993 case of [https://canlii.ca/t/1dk6h Farden v. Farden] talks about circumstances like these.

*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or off-and-on contributions may not be enough, as the court in the 2007 case of [http://canlii.ca/t/1rn88 McConnell v. McConnell] discussed.

*require a payor with life insurance to maintain their insurance policy and make the other parent or the child will a beneficiary of the policy, or

It is important that the application for child support is made while the child still qualifies for child support, otherwise, the court may not have the authority to make a child support order, even a retroactive child support order. There is sometimes an exception to this general rule for applications to change child support orders made under the ''Divorce Act''; the 2015 case [https://canlii.ca/t/gmc40 MacCarthy v. MacCarthy] and the 2017 case of [https://canlii.ca/t/hnz2p Colucci v. Colucci] talk about this problem. However, the Supreme Court of Canada's 2020 decision in [https://canlii.ca/t/j9p0r Michel v. Graydon] said that child support orders under the ''Family Law Act'' can be changed under section 152 of the act, whether or not the child is still a "child" under the act.

The ''Interjurisdictional Support Orders Act'' process applies in every province and territory. However, only some other countries have agreed to the ''Interjurisdictional Support Orders Act'' process. If the country 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]]''.

* 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

* Africa — South Africa, Zimbabwe

* Asia — Hong Kong, Republic of Singapore

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 [http://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s1/f3/s1-f3-c3-eng.html#N10C4B Canada Revenue Agency's Income Tax Folio S1-F3-C3, Support Payments] for the fine print, and speak to an accountant to get advice to see if you qualify to write off the portion of your lawyer’s bill that relates to child support.

To claim this deduction, the lawyer must write a letter to the CRA setting out what portion of their fees were attributable to advancing or enforcing a child support claim. If you intend to ask your lawyer for a letter like this, you should tell your lawyer as soon as possible — preferably the moment the lawyer takes your case! — so that they can keep a log of time spent on your claim for child support.

In a shared parenting situation, where each parent has a duty to pay child support to the other parent, the higher-income parent often just pays the difference between the higher amount they owe and the lower amount they would receive from the lower-income parent. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the CRA has decided that if the agreement or order says that only the higher income earning parent pays child support, the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.  

In cases like this, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependents when they file their taxes. As a result, it's to make sure that your agreement or order says that ''each'' parent pays child support to the other. And it's probably best to not even mention the set-off amount actually paid. You can do the math to figure that out yourself. An agreement might, for example, say something like this:

The ''[http://canlii.ca/t/8qx3 Limitation Act]'' 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) of the act.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to people who are "spouses," defined as people who are or who used to be married to each other; Uunder 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) of the ''Family Law Act'' 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.

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice's website "Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement"] (list of reciprocals offices by province)

* [http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services Ministry of Attorney General's website "Family Maintenance Services"]  

{{REVIEWED | reviewer = [[JP Boyd]], 26 June 2022}}