Difference between revisions of "Spousal and Child Support (3:X)"

Under the ''FLA'', the most important changes are in wording. The following are some examples of new vocabulary from the FRA || FLA:

*Custody || Guardianship/Parenting Time  

*Access || Parenting Time/Contact  

*Maintenance || Support

*a Notice of Attachment (s 17);  

The [https://www.fmep.gov.bc.ca/ Family Maintentance Enforcement Program (FMEP)] can only enforce support orders if the payor is in its jurisdiction or sister jurisdictions that will assist in enforcing the order. For a complete list of sister jurisdictions see https://www.fmep.gov.bc.ca/paying-or-receiving-maintenance/out-of-province-orders/other-jurisdictions/. Any person who receives a support order or separation agreement that has been filed in court may voluntarily register with the program.

Spousal support orders may be varied where there have been changes in the needs, means, capacities and economic circumstances of each party (''DA'', s 17(4.1), ''FLA'' s 215(1)). The Court may also reduce the amount of support to a spouse where it finds that the spouse or former spouse “is not making reasonable efforts” to become self-sufficient. Note that for a variation application to be successful the applicant must demonstrate that there has been a “material change in  circumstances” which means circumstances that, if known at the time of the agreement or Order, would have resulted in a different outcome.   

The Court can enforce written agreements that provide for the payment of child or spousal support., a written agreement concerning support may be filed in the Provincial Court and in the Supreme Court. Once filed, the agreement has the effect of a court order for enforcement purposes.  

The first thing that a spouse must determine regarding spousal support is whether or not they are entitled to receive it. After that, the amount and duration of spousal support can be determined. The fundamental question in determining spousal support is whether the objectives of spousal support under the [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html ''Spousal Support Advisory Guidelines'' [SSAG<nowiki>]</nowiki>] are met.  The division of assets in the divorce will impact whether or not the spouse is entitled to spousal support and will be taken into account when the court decides how much spousal support to order.  It should be noted that if a party is entitled to compensatory support arising from the relationship, the receipt of significant assets in the division of assets may not result in a loss of entitlement to support (See [http://canlii.ca/t/237r7 ''Chutter v. Chutter'', 2009 BCCA 177]).  

Section 15.2 of the ''DA'' creates an obligation to support a spouse. However, s 15.3(1) directs the Court to give priority to child support in any application for child and spousal support under the ''DA''. The entire gross income (guideline income) is used to calculate child support and then any Net Disposable Income that remains (as calculated based on the incomes of both parties and taking into account taxes and other charges) is apportioned between the parties based on the length of marriage. It may be that the result of the payment of child support reduces the Net Disposable Income to very little and in those cases child support takes priority over the sharing of the NDI and there would be little to no spousal support payable. There is no limitation date under the ''DA''.

The ''FLA'' aligns support considerations with the ''DA'', permits periodic reviews to allow for changing circumstances, and provides guidelines for when a deceased spouse’s estate is obliged to continue payments. Considerations for posthumous support payments include the size of the estate and the need of the payee (s 171). Additionally, child support is to be prioritized over spousal support where a paying spouse has limited resources. (s 173). The ''SSAG'' are not referred to in the Act and remain advisory, although Courts in British Columbia give them much deference.

Once a party has met the requirement of demonstrating entitlement, you move to the calculation of quantum. When determining quantum of support one factor to be considered is whether the needs of the recipient spouse have been met by the division of assets however if support is compensation based then even if the recipient receives significant assets that is not a basis to reduce support (See [http://canlii.ca/t/237r7 ''Chutter v Chutter'', [2009<nowiki>]</nowiki> CarswellBC 1028 (BCCA)]). Typically the way this is addressed is to determine what income a party can reasonably earn from the assets received on division and to take that into account in calculating the quantum of support.

Section 15.2(6) of the ''DA'' and section 161 of the ''FLA'' direct courts to consider the following  objectives in determining entitlement to spousal support:

* Any order, agreement or arrangement relating to support of either spouse.

Spouses can opt into this program so that the FMEP can continue to assist in collecting the support, but still allow them to keep their support rather than having it deducted from other government assistance they are receiving, if any.

Spousal support is treated by the recipient as taxable income. The spouse who pays support is entitled to deduct the amount from income tax. The spouse who receives support is required to declare it as income, in contrast to child support which has no income tax consequences. Lump payments of support are not taxable. There are free online child support and spousal support calculators on the Internet (e.g. child support: http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp; spousal support: http://www.mysupportcalculator.ca/Calculator.aspx, http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html). It is essential that support payments be identified as such in court orders and separation agreements if the payor is to be able to claim a deduction. As a rule, oral or informal agreements are not sufficient to establish the status of payments as spousal support. Parties are permitted to enter into retroactive agreements which set out the amount paid and received in prior years for the purposes of claiming income tax relief. However any such agreement must be entered into before the end of the calendar year immediately following the year in question (''e.g.'' if payments were made in 2012, a retroactive agreement would need to be entered into before December 31, 2013).  

See Section XV Part A for the limitation periods for bringing claims for spousal support for both married spouses and common-law spouses.

Expenses for extracurricular activities must be reasonable having regard to the parents’ means, but need not be restricted to a special talent of the child. “Extraordinary” is also determined by what would be extraordinary in a household with a similar income; it depends on the lifestyle of the family.

Under section 147 of the ''FLA'', each parent and guardian of a child has a duty to provide support for the child unless the child is a spouse or is under 19 years of age and has voluntarily withdrawn from their parents’ or guardians’ charge, except if the child withdrew because of family violence or because the child’s circumstances were considered intolerable. For example, a child who has been incarcerated for more than one year is considered to have voluntarily withdrawn ([http://canlii.ca/t/fzchl ''MA v FA'', 2013 BCSC 1077]). If the child was removed from the family by the state ([http://canlii.ca/t/g91cr ''DZM v SM'', 2014 BCPC 198]) or refuses to visit, this is not considered voluntary withdrawal ([http://canlii.ca/t/g83qv ''Henderson v Bal'', 2014 BCSC 1347]). However, if this child returns to their parents’ or guardians’ charge, their duty to provide support to the child resumes. Additionally, section 147 of the ''FLA'' also states that a child’s stepparent does not have a duty to provide support for the child unless the stepparent contributed to the support of the child for at least one year and a proceeding for an order under this part is started within one year after the date the stepparent last contributed to the support of the child. Qualifying step-parents have a duty to provide child support ([http://canlii.ca/t/g82v2 ''CLP v ND'', 2014 BCPC 154]). A step-parent may also be ordered to provide support if the parents are not able to provide the child with consistent and reasonable standards of living ([http://canlii.ca/t/g6r8f ''CB v MB'', 2014 BCPC 75]).  

See Section XV Part A for the limitation periods regarding child support claims.

Appeals of decisions made under this Act must be made within 90 days of the ruling (s 36(5)) but, despite this, the Court to which an appeal is made may extend the appeal period before or after the appeal period has expired (s 36(6)). The website http://www.isoforms.bc.ca provides a questionnaire under the heading “forms select” to determine which application forms are required for a client’s specific situation. Forms can be accessed online or be mailed to you. A guide to filling out the forms can be found at www.isoforms.bc.ca/shared/pdfs/GuideIntroInstructions.pdf. Completed forms can be submitted to: