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Difference between revisions of "Divorce Act Basics"
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Joint custody does not always mean that the spouses share the child's time equally or near-equally. Joint custody means that both spouses are expected to play a role in raising their children and in making decisions about their care and upbringing; whether they share the children's time equally or have very unequal amounts of time with the children is another question. | Joint custody does not always mean that the spouses share the child's time equally or near-equally. Joint custody means that both spouses are expected to play a role in raising their children and in making decisions about their care and upbringing; whether they share the children's time equally or have very unequal amounts of time with the children is another question. | ||
===What rights does access give?=== | |||
Access usually refers to the parenting schedule of the spouse who sees the child for the least amount of time, or to the parenting schedule of someone who isn't a spouse. More importantly, under s. 16(5) of the ''Divorce Act'', a spouse who has access also has: | Access usually refers to the parenting schedule of the spouse who sees the child for the least amount of time, or to the parenting schedule of someone who isn't a spouse. More importantly, under s. 16(5) of the ''Divorce Act'', a spouse who has access also has: | ||
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===How are orders for custody and access enforced?=== | ===How are orders for custody and access enforced?=== | ||
''Divorce Act'' orders for custody and access have effect throughout Canada, and are enforced under the laws of each province. In British Columbia, ''Divorce Act'' orders can be enforced by a spouse under the rules of court and the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. | |||
===How are orders for custody and access changed?=== | ===How are orders for custody and access changed?=== | ||
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==The law about child support== | ==The law about child support== | ||
===Who is a child?=== | ===Who is a "child of the marriage?"=== | ||
The ''[[Divorce Act]]'' talks about "children of the marriage." A child is a child of two spouses who is under the age of 19, the age of majority in British Columbia, or 19 and older but "unable to withdraw" from the spouses' care. Normally, adult children who are unable to withdraw are children who are ill or disabled or | The ''[[Divorce Act]]'' talks about "children of the marriage." A child is a child of two spouses who is under the age of 19, the age of majority in British Columbia, or 19 and older but "unable to withdraw" from the spouses' care. Normally, adult children who are unable to withdraw are children who are ill or disabled, or are going to school full-time, and are unable to support themselves as a result. | ||
===Who is a spouse?=== | ===Who is a spouse?=== | ||
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===Who can ask for child support?=== | ===Who can ask for child support?=== | ||
Under s. 15.1(1) only spouses can ask for child support orders. If someone other than a spouse has custody of a child and needs child support, the person <span class="noglossary">will</span> need to apply for | Under s. 15.1(1) only spouses can ask for child support orders. If someone other than a spouse has custody of a child and needs child support, the person <span class="noglossary">will</span> need to apply for child support under the provincial ''[[Family Law Act]]''. | ||
===How is the amount of child support calculated?=== | ===How is the amount of child support calculated?=== | ||
Child support is determined by the [[Child Support Guidelines]]. Most of the time, child support | Child support is determined by the [[Child Support Guidelines]]. Most of the time, child support his easy to figure out: you just look up the amount payable in the tables attached to the Guidelines based on the payor’s income and the number of children support is being paid for. Calculating child support can get more complicated when: | ||
*a child is 19 or older, | *a child is 19 or older, | ||
*the payor has an income of more than $150,000 per year, | *the payor has an income of more than $150,000 per year, | ||
*the payor is a stepparent, | |||
*one or more children live mostly with each spouse, called ''split custody'', | *one or more children live mostly with each spouse, called ''split custody'', | ||
*the spouses share the children’s time equally or almost equally, called ''shared custody'', or | *the spouses share the children’s time equally or almost equally, called ''shared custody'', or | ||
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Most of the time, child support is paid every month, usually on the first day of the month. It is possible for child support to be paid in a single lump sum, but this is very rare. Payors can be required to pay by giving the recipient a series of post-dated cheques. | Most of the time, child support is paid every month, usually on the first day of the month. It is possible for child support to be paid in a single lump sum, but this is very rare. Payors can be required to pay by giving the recipient a series of post-dated cheques. | ||
However child support gets paid, it's important for the payor to keep a record of how much was paid and when it was paid, perhaps from receipts provided by the recipient, from cancelled cheques or from bank statements. This can help prevent arguments about whether a payment was late or missed altogether. | |||
===How are orders for child support changed?=== | ===How are orders for child support changed?=== | ||
Under s. 17(4) of the ''[[Divorce Act]]'', the court can change an order for child support if there has been a change in circumstances that would result in a different amount of support being paid | Under s. 17(4) of the ''[[Divorce Act]]'', the court can change an order for child support if there has been a change in circumstances that would result in a different amount of support being paid. Typical changes are increases or a decreases in the payor's income, or changes in how the children's time is divided between the spouses. | ||
====When both spouses live in British Columbia==== | ====When both spouses live in British Columbia==== | ||
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====When a spouse lives outside of British Columbia==== | ====When a spouse lives outside of British Columbia==== | ||
To change a British Columbia ''[[Divorce Act]]'' child support order when the respondent lives in another province, the applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18. | To change a British Columbia ''[[Divorce Act]]'' child support order when the respondent lives in another province, the applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18. If the court makes a provisional order, it <span class="noglossary">will</span> send the order to the province where the respondent lives, and the court there <span class="noglossary">will</span> have a hearing to ''confirm'' the provisional order under s. 19. | ||
If the court makes a provisional order, it <span class="noglossary">will</span> send the order to the province where the respondent lives, and the court there <span class="noglossary">will</span> have a hearing to ''confirm'' the provisional order under s. 19. | |||
The court at the confirmation hearing may: | The court at the confirmation hearing may: | ||
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===Who is entitled to ask for spousal support?=== | ===Who is entitled to ask for spousal support?=== | ||
Only spouses can ask for spousal support. Under s. 15 of the ''[[Divorce Act]]'', "spouse" includes ''former spouses'', spouses who have been divorced. There is no time limit on when a spouse or former | Only spouses can ask for spousal support. Under s. 15 of the ''[[Divorce Act]]'', "spouse" includes ''former spouses'', spouses who have been divorced. There is no time limit on when a spouse or former spouse can ask for spousal support. | ||
A spouse’s entitlement to spousal support is determined based on factors set out at s. 15.2(4): | A spouse’s entitlement to spousal support is determined based on factors set out at s. 15.2(4): | ||
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<blockquote><blockquote><tt>(c) any order, agreement or arrangement relating to support of either spouse.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(c) any order, agreement or arrangement relating to support of either spouse.</tt></blockquote></blockquote> | ||
Remember that no one is automatically entitled to get spousal support the way a child is automatically entitled to benefit from child support. Anyone who is a spouse can ''ask'' for spousal support, but being able to ask doesn’t mean | Remember that no one is automatically entitled to get spousal support the way a child is automatically entitled to benefit from child support. Anyone who is a spouse can ''ask'' for spousal support, but being able to ask doesn’t mean you'll get it. You must also show that you are entitled to spousal support. | ||
===How are the amount and duration of spousal support calculated?=== | ===How are the amount and duration of spousal support calculated?=== | ||
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<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. </tt></blockquote></blockquote> | <blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. </tt></blockquote></blockquote> | ||
The amount of spousal support to be paid and the duration that it should be paid for is often determined using the [[Spousal Support Advisory Guidelines]]. The Advisory Guidelines is not a law like the [[Child Support Guidelines]] and is not mandatory | The amount of spousal support to be paid and the duration that it should be paid for is often determined using the [[Spousal Support Advisory Guidelines]]. The Advisory Guidelines is not a law like the [[Child Support Guidelines]] and is not mandatory; the ''[[Divorce Act]]'' doesn't even mention the Advisory Guidelines. However, the Advisory Guidelines can be very helpful to figure out how much should be paid and how long it should be paid for. | ||
===Is a spouse’s conduct taken into account?=== | ===Is a spouse’s conduct taken into account?=== | ||
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===How is spousal support paid?=== | ===How is spousal support paid?=== | ||
Most of the time, spousal support is paid every month, usually on the first day of the month. It is possible for spousal support to be paid in a single lump sum. Payors can be required to pay by giving the recipient a series of post-dated cheques. | Most of the time, spousal support is paid every month, usually on the first day of the month. If child support is also being paid, child support and spousal support payments can be staggered if that's fair to both parties. It is also possible for spousal support to be paid in a single lump sum. Payors can be required to pay by giving the recipient a series of post-dated cheques. | ||
===Are there tax consequences?=== | ===Are there tax consequences?=== | ||
There are tax consequences when spousal support is paid on a regular basis. Spousal support is tax neutral when it is paid as a single lump sum. | There are tax consequences when spousal support is paid on a regular, repeating basis. Spousal support is tax neutral when it is paid as a single lump sum. | ||
The recipient of regular payments of spousal support must declare the support received in his or her income tax return and pay tax on it, just as if the support payments were employment income. The payor can deduct the spousal support paid from his or her taxable income, like how RRSP contributions can be deducted from taxable income. This usually means that the recipient has to pay tax at the end of the year while the payor gets a tax refund. | The recipient of regular payments of spousal support must declare the support received in his or her income tax return and pay tax on it, just as if the support payments were employment income. The payor can deduct the spousal support paid from his or her taxable income, like how RRSP contributions can be deducted from taxable income. This usually means that the recipient has to pay tax at the end of the year while the payor gets a tax refund. | ||
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====When a spouse lives outside of British Columbia==== | ====When a spouse lives outside of British Columbia==== | ||
To change a British Columbia ''[[Divorce Act]]'' spousal support order when the respondent lives in another province, the applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18. | To change a British Columbia ''[[Divorce Act]]'' spousal support order when the respondent lives in another province, the applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18. If the court makes a provisional order, it <span class="noglossary">will</span> send the order to the province where the respondent lives, and the court there <span class="noglossary">will</span> have a hearing to ''confirm'' the provisional order under s. 19. | ||
If the court makes a provisional order, it <span class="noglossary">will</span> send the order to the province where the respondent lives, and the court there <span class="noglossary">will</span> have a hearing to ''confirm'' the provisional order under s. 19. | |||
The court at the confirmation hearing may: | The court at the confirmation hearing may: | ||
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{{REVIEWED | reviewer = [[JP Boyd]], | {{REVIEWED | reviewer = [[JP Boyd]], August 8, 2017}} | ||
{{JP Boyd on Family Law Navbox|type=started}} | {{JP Boyd on Family Law Navbox|type=started}} | ||
