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Child Support Arrears

2014-10-09T19:28:23Z

Eugene Raponi: /* The Family Maintenance Enforcement Program */

Changing Family Law Orders, Awards and Agreements Involving Child Support

2014-10-09T00:34:39Z

Eugene Raponi: /* Financial statements */

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Eugene Raponi|Eugene Raponi, QC]] and [[Inga Phillips]]
}}
{{LSSbadge
|resourcetype = a fact sheet on
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php when you can change a final order]
}}As with all arrangements relating to children, there is no such thing as an absolutely final order or agreement for child support. It is always open to the court to change an order or agreement for child support, providing that the parties' circumstances, or the circumstances of the parties' children, have changed.

Generally speaking, payors will want to apply to have support reduced or terminated when their income has decreased or the children have grown up. Recipients will want to apply to have support increased when the payor's income has gone up or if the children's special expenses have increased.

This section talks about changing orders made under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]'', changing orders that were made before the federal Child Support Guidelines came into effect on 1 May 1997, and changing orders that were made in a different place. This section also discusses claims for retroactive support and the important case of ''[http://canlii.ca/t/1p0tv D.B.S. v. S.R.G.]'', [2006] 2 SCR 231.

==''Divorce Act'' Orders==

Under s. 5 of the ''Divorce Act'', the Supreme Court has the jurisdiction to vary an order for child support as long as at least one of the spouses is normally living in the province where the court proceeding to vary the order is started, no matter which province's courts made the original order.

Section 17 of the ''Divorce Act'' gives the court the authority to change, cancel, or suspend orders for support made under that act. "Changing" an order is called ''varying'' the order. Section 17 says this:

<blockquote><tt>(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.</tt></blockquote>
<blockquote><tt>(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.</tt></blockquote>
<blockquote><tt>(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied</tt></blockquote>
<blockquote><blockquote><tt>(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.</tt></blockquote></blockquote>
<blockquote><tt>(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.</tt></blockquote>
<blockquote><tt>(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.</tt></blockquote>

This all boils down to these principles:

*A court can make an order changing a previous child support order if a change in circumstances has occurred since the order was made.
*Any new order for child support must be made according to the Child Support Guidelines.
*The court may make an order for support different from the Guidelines if a previous order or agreement has made special provisions for the care of the child that would make an order under the Guidelines inappropriate.
*The court may also make an order for support different from the Guidelines if both spouses agree to the order, and reasonable arrangements have been made for the support of the children.

Before the Child Support Guidelines came into effect, an applicant had to show that there had been a serious and unforeseen change in circumstances before the court would hear an application to vary an order for child support. Now, an applicant must only show that there has been a change in income or the child's expenses to show that there has been a change in circumstances.

Section 14 of the Guidelines defines a "change in circumstances" as follows:

<blockquote><tt>For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:</tt></blockquote>
<blockquote><blockquote><tt>(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...</tt></blockquote></blockquote>

===Financial statements===

When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, which is Form F8 in the Supreme Court or Form 4 in the Provincial Court, and which, like affidavits, must be sworn before a notary or a lawyer:

*The payor must produce a financial statement dealing with his or her income if the payor is paying child support according to the tables.
*Both parties must produce financial statements dealing with income if custody is shared or split.
*Both parties must produce complete financial statements covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, a claim for undue hardship, the payor's income is above $150,000 per year, or one or more of the children are over the age of majority.

These new financial statements give the court the information it will need to make a new child support order, if it's willing to vary the original order. Links to and examples of Supreme Court forms are available in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===Statutory provisions===

These are the primary sections of the ''[[Divorce Act]]'' dealing with varying child support orders:

*s. 2: definitions
*s. 4: jurisdiction to make child support orders
*s. 5: jurisdiction to change orders
*s. 15.1: child support
*s. 15.3: child support has priority over spousal support
*s. 17: variation proceedings

==''Family Law Act'' orders==

Section 152(2) of the ''[[Family Law Act]]'' gives a court the authority to cancel, vary, or suspend an order for child support where one of three conditions is met:

<blockquote><tt>(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;</tt></blockquote>
<blockquote><tt>(b) evidence of a substantial nature that was not available during the previous hearing has become available;</tt></blockquote>
<blockquote><tt>(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.</tt></blockquote>

Section 14 of the Guidelines says what a "change in circumstances" means:

<blockquote><tt>For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:</tt></blockquote>
<blockquote><blockquote><tt>(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act ...</tt></blockquote></blockquote>

Under s. 148(3), the court may set aside an agreement on child support and make an order for child support in its place "if the court would make a different order" than what the agreement provides.

===Financial statements===

When an application to vary a child support order is brought, one or both parties may have to produce their financial information. This information is almost always given in a Financial Statement, which is Form F8 in the Supreme Court and Form 4 in the Provincial Court:

*The payor must produce a financial statement dealing with his or her income if the payor is paying child support according to the tables.
*Both parties must produce financial statements dealing with income if custody is shared or split.
*Both parties must produce complete financial statements covering income, expenses, assets and liabilities if there is a claim about the children's special expenses, a claim for undue hardship, the payor's income is above $150,000 per year, or one or more of the children over the age of majority.

These new financial statements give the court the information it will need to make a new child support order, if it's willing to vary the original order. Links to and examples of Supreme Court forms are available in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For Provincial Court forms see [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]].

===Statutory provisions===

These are the primary sections of the ''[[Family Law Act]]'' dealing with varying orders and setting aside agreements for child support:

*s. 1: definitions
*s. 146: more definitions
*s. 148: agreements for child support
*s. 149: orders for child support
*s. 150: calculating the amount of child support
*s. 152: varying orders for child support
*s. 173: child support has priority over spousal support

==Orders made before 1 May 1997==

The fact that an order or agreement was made before the Child Support Guidelines came into effect does not mean that a court ''must'' change the order or agreement to comply with the Guidelines. Although s. 17(6.1) of the ''[[Divorce Act]]'' requires the court to make an order that complies with the Guidelines, this rule does not apply to agreements and orders made before 1 May 1997. Don't be discouraged by this, however, as the court still retains the discretion to apply the Guidelines and generally will.

If the difference between the old order and the order you seek is substantial, which it often will be, and the application is for an increased amount of child support, the court will likely be more willing to apply the Guidelines, as a higher amount of support is presumed to be in the best interests of children.

==Orders made outside British Columbia==

It's rarely easy to change an order made outside of British Columbia because of the respect our courts must give to the authority and jurisdiction of the court that made the original order. (There are a bunch of other reasons why it can be hard to change an order made outside of British Columbia, but that's the meat of it.) The process that will apply depends entirely on whether the original order was made under the federal ''Divorce Act'' or under the family law legislation of the place whose courts made the original order.

===''Divorce Act'' orders===

Orders that were made elsewhere in Canada under the ''[[Divorce Act]]'' can be changed here under s. 5 of the act, as long as both parties live in British Columbia. Where one party still lives in the province whose courts made the original order, a person living here can apply to change the original order using a cumbersome, time-consuming process described in ss. 18, 19 and 20 of the act:

#the applicant applies here for a "provisional" order changing the original order,
#the court sends the provisional order to the place that made the original order,
#on notice to the other party, the original court holds a hearing to "confirm" the provisional order, and
#if the provisional order is confirmed, the original order is varied, and if it is not confirmed, the original order remains unchanged.

This process requires two hearings, one here in British Columbia for the provisional order and a second in the original court to confirm that order. The court in the other province may or may not confirm the provisional order, and may choose to send the order back here for more information. Until the provisional order is confirmed, the provisional order has no effect and the original order will continue to be the operative order.

===Orders and agreements made under other laws===
{{LSSbadge
|resourcetype = more information on 
|link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/what_if_one_party_outside_BC_Interjurisdictional.php Interjurisdictional issues in child support]
}}Orders and agreements that were made elsewhere in Canada under provincial family law legislation or were made in certain countries other than Canada, can be changed by someone living in British Columbia using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''. Governments that have agreed to follow this process under the ''Interjurisdictional Support Orders Act'' are called ''reciprocating jurisdictions''.

The countries that will cooperate with a proceeding under the ''Interjurisdictional Support Orders Act'' are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies.

The process under this act is as follows:

#the person asking to change the order or agreement, the ''applicant'', completes a bunch of forms provided by the provincial [http://www.isoforms.bc.ca Reciprocals Office],
#our reciprocals office sends the forms to the court that made the original order or the court of the place where the agreement was made, and
#on notice of the other party, the original court holds a hearing on the applicant's application and may make an order varying the original order or agreement.

Under this process, there is only one hearing and the hearing is heard by the court that made the original order. The court in the reciprocating jurisdiction may or may not make the order that the applicant wants and may send the application back to British Columbia for more information. The original order or agreement will continue in effect until the court in the reciprocating jurisdiction varies it.

This new process is intended to simplify things by having just the one hearing. To do that, however, the process relies very heavily on paperwork and the officials of our government and the government of the reciprocating jurisdiction. As a result, applications under the ''Interjurisdictional Support Orders Act'' can take a long time to process.

Contact details for the [http://www.isoforms.bc.ca British Columbia Reciprocals Office], along with all of the forms required by the ''Interjurisdictional Support Orders Act'' can be found at [http://www.isoforms.bc.ca www.isoforms.bc.ca].

To vary an order of a country that does not participate in the ''Interjurisdictional Support Orders Act'' process, you will have to apply to vary the order in that country.

==Retroactive child support==

Someone making a claim for ''retroactive'' child support is asking for an order that is to work beginning at some date in the past, before the claim was made or heard. Typically, someone receiving child support will ask for an increase in the amount of support payable dating back to when the payor's income went up. If the claim is successful, the payor will be obliged to start making payments in the amount of the new order, plus a lump sum representing the difference between the support that was paid and the support that ought to have been paid. This can sometimes be a significant financial hardship, particularly where the period of retroactive effect is long.

The trend in the recent case law on this subject has been to impose an ongoing duty on payors to disclose their income, whether they are asked for this information or not, and the courts have been increasingly willing to subject payors to retroactive orders for child support.

===The basic law: ''L.S. v. E.P.''===

The case of ''[http://canlii.ca/t/52lj L.S. v. E.P.]'', 1999 BCCA 393, a 1999 decision of our Court of Appeal, used to be the most important case on this issue in British Columbia, and still is the most important case for orders made under the ''[[Family Law Act]]''. In this case, the court set out the factors that should be considered in deciding whether there should or should not be a retroactive order for support:

<blockquote>"A review of the case law reveals that there are a number of factors which have been regarded as significant in determining whether to order or not to order retroactive child maintenance. Factors militating in favour of ordering retroactive maintenance include:</blockquote>
<blockquote><blockquote>(1) the need on the part of the child and a corresponding ability to pay on the part of the non-custodial parent;</blockquote></blockquote>
<blockquote><blockquote>(2) some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order;</blockquote></blockquote>
<blockquote><blockquote>(3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses;</blockquote></blockquote>
<blockquote><blockquote>(4) an excuse for a delay in bringing the application where the delay is significant; and,</blockquote></blockquote>
<blockquote><blockquote>(5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end.</blockquote></blockquote>
<blockquote>"Factors which have militated against ordering retroactive maintenance include:</blockquote>
<blockquote><blockquote>(1) the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such a burden would interfere with ongoing support obligations;</blockquote></blockquote>
<blockquote><blockquote>(2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and,</blockquote></blockquote>
<blockquote><blockquote>(3) a significant, unexplained delay in bringing the application."</blockquote></blockquote>

When hearing an application for retroactive child support, the court would apply these factors in deciding whether a retroactive award was warranted and, if so, how much the award should be for and when the retroactive effect of the order should begin.

===A change in the law: ''D.B.S. v. S.R.G.''===

In July 2006, the Supreme Court of Canada released its [http://canlii.ca/t/1p0tv judgment] in four related cases, ''D.B.S. v. S.R.G.'', ''L.J.W. v. T.A.R.'', ''Henry v. Henry'' and ''Hiemstra v. Hiemstra'', [2006] 2 SCR 231 and significantly clarified the law on retroactive child support. Where it changed the law, the changes weren't all that far from our Court of Appeal's decision in ''L.S. v. E.P.'' These cases are referred to collectively as just ''D.B.S. v. S.R.G.'', the initials of the lead case.

The logic underlying the [http://canlii.ca/t/1p0tv court's decision] is this:

Before the Child Support Guidelines came into effect, child support was determined using budgets and a means and needs analysis looking at the ''means'' of the parents and the real or expected ''needs'' of the children. After the Guidelines came into effect on 1 May 1997, child support was expressly linked to the income of the payor, and the payor's duty became to pay support at the amount required for his or her income, using the tables attached to the Guidelines rather than budgets and the needs-and-means analysis. As a result, the court held that a duty to pay child support — whether under a separation agreement or a court order — is never final and absolute. No orders or agreements are final on the subject of support, and both parents have the obligation of ensuring that the right amount of child support is being paid on an ongoing basis.

The following is a summary of the important points in this decision.

====The rationale for retroactive support====

*Both parents have a duty "to ensure that their children are receiving a proper amount of support."
*"While the paying parent does not shoulder the burden of automatically adjusting payments" when his or her income increases, "this does not mean that (s)he will satisfy his/her child support obligation by doing nothing."
*If the payor's income increases and child support does not, "there will remain an unfulfilled obligation" that could warrant a retroactive award of support.

====When retroactive child support should be ordered====

=====When there is an existing order=====

*Child support orders "must be considered presumptively valid."
*"Where the situations of the parents have changed materially since the original order was handed down, that original order may not be as helpful as it once was in defining the parents' obligations."
*An obligation to pay the proper amount of support is "independent of any court order that may have been previously awarded." Where parents fail to adjust the amount of support payable, "a court may order an award that recognizes and corrects this failure."

=====When there is an existing agreement=====

*"A payor parent who adheres to a separation agreement that has not been endorsed by a court should not have the same expectation that (s)he is fulfilling his/her legal obligations as does a parent acting pursuant to a court order."
*"Agreements reached by the parents should be given considerable weight."
*"Where circumstances have changed," such that the "actual support obligations of the payor have not been met, courts may order a retroactive award."

=====When there is no order or agreement=====

*There is "no restriction" as to "the date from which the court may order that the award take effect."
*"Courts will have the power to order original retroactive child support awards in appropriate circumstances."

====Factors in making retroactive child support awards====

*The child must be eligible to receive support when the application for retroactive support is made; "child support is for children of the marriage, not for adults who used to have that status."
*The court has the discretion to award or not award retroactive support, but retroactive awards "need not be seen as exceptional."
*Retroactive child support should not be awarded if the child would not actually benefit from the award of if the award would cause hardship to the payor.
*"A court should strive for a holistic view of the matter and decide each case on the basis of its particular facts."
*The recipient's delay in seeking an increase in support will not favour a retroactive award where the recipient "knew higher support payments were warranted, but decided arbitrarily not to apply."
*The recipient's delay will not be considered if the recipient feared the payor's reaction or lacked "the financial or emotional means to bring an application, or was given inadequate legal advice."
*"Courts should not hesitate to take into account a payor's blameworthy conduct," and courts should "take an expansive view of what constitutes blameworthy conduct."
*Blameworthy conduct is "anything that privileges the payor parent's interests over his/her children's right to an appropriate amount of support," such as hiding income increases or intimidating a recipient from seeking an increase in support.

====How far back child support awards should be retroactive====

*The date of "effective notice" of the recipient's intention to seek an increase should be the furthest back a retroactive award should go.
*"Effective notice" doesn't mean the date of applying to court, but the date of notice of "any intention by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated" was given.
*Except where there is some blameworthy conduct on the part of the payor, it will "usually be inappropriate" to go further back in time than three years from the date of the hearing.
*Where there is blameworthy conduct, "the presumptive date of retroactivity" will be the time the payor's "circumstances changed materially."

====How much retroactive child support should be ordered====

*Retroactive awards must ensure that the amount "fits the circumstances."
*"Blind adherence to the amounts set out in the applicable Tables is not required — nor is it recommended."
*"It will be easier to show that a retroactive award causes undue hardship" than it is to show that a normal child support order causes undue hardship.
*A court "should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case."
*In other words, retroactive support may be awarded whenever a payor is paying less than the Child Support Guidelines requires, if his or financial circumstances change following the making of an order or agreement dealing with child support. In making such an order, the court must consider:
*#any excuse for the recipient’s delay in seeking an increase in support,
*#any blameworthy conduct on the party of the payor,
*#the circumstances of the child, and,
*#any hardship that a retroactive award would cause to the payor.
*If a retroactive award is made, the award should be made retroactive to the date notice is given of the recipient's intention to seek an increase in the amount of support, but to a limit of three years. Where the payor’s conduct is blameworthy, then the support should be retroactive to the date of the change in the payor’s financial circumstances, and may be retroactive beyond the three-year mark.


==Resources and links==
===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.familylaw.lss.bc.ca/guides/change/cantAgree/index.php Legal Services Society Family Law in BC Website: How to change a family law order (Supreme Court and Provincial Court)]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/changingFinalOrder.php Legal Services Society Family Law in BC Website: Fact sheet on when you can change a final order]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2014-10-09T00:30:03Z

Eugene Raponi: /* Windfalls */

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Eugene Raponi|Eugene Raponi, QC]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Often simply referred to as the Guidelines, the [http://canlii.ca/t/80mh Child Support Guidelines], SOR/97-175, is a federal regulation, adopted by all of the provinces except Quebec, that describes the rules that the courts must apply when making an order for child support.

The most important feature of the Guidelines is the child support tables that fix the amount of support payments according to the annual income of the person paying support and the number of children the support is to be paid for.

The Guidelines cover every aspect of child support, including the calculation of income, how children's special expenses are paid for, the amount of support payable when the parents have the children for an almost equal amount of time, and the amount payable when one or more of the children live full-time with each parent.

This section talks about the basic principles of the Guidelines, the sharing of special and extraordinary expenses, the calculation of income, imputing income, and the circumstances in which the income of a parent's or guardian's new partner may be taken into account. It also provides an example of the contents of a typical child support order.

==Basic principles==

It used to be the case that the party claiming support, the ''recipient'', had to jump through all sorts of hoops to show the amount of support the child needed and prove that the person being asked to pay support, the ''payor'', had the means to pay that amount. These days, the amount of a child support order or an agreement for child support is based on the amounts set out in the tables attached to the Child Support Guidelines. The Guidelines have generally reduced the amount of time and money that parents spend fighting about child support, whether they're in court arguing about an order, or are negotiating the amount of support for a separation agreement.

The Guidelines tables were most recently adjusted on 31 December 2011. The amount of child support required of lower earning parents was reduced and the amount of support for higher earning parents was increased, although none of the changes were particularly dramatic. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts.

The Guidelines' key presumption is set out in s. 3(1):

<blockquote><tt>Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the amount, if any, determined under s. 7.</tt></blockquote></blockquote>

This is, however, only a presumption, and can be challenged or ''rebutted'', as is discussed in this chapter's next section, [[Exceptions to the Child Support Guidelines]]. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross annual income at the time the order is made.

Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order so that the amount of child support reflects the payor's current income. The payor would typically make the application if his or her income has fallen, while the recipient would make the application when the payor's income has increased. To avoid a situation where parents are continually making trips back to court to seek an adjustment of child support, it's a good idea to include a term that requires both parties to regularly exchange income information in an agreement or order for child support, so that child support can be adjusted from time to time without having to go to court.

Another of the Guidelines' important presumptions is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligation is not based on the Guidelines amount for the total number of five children.

Finally, the amount of support payable is based only on the payor's income. In most situations the recipient's income is not a factor, nor is the income of the payor's new spouse or partner.

==Special and/or extraordinary expenses==

The basic amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the child's share of the rent, the hydro and gas bills, shoes, groceries, diapers, clothes, toothpaste, school field trip fees and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, a payor may also be required to cover a portion of these other expenses, so long as they qualify as ''special and/or extraordinary expenses'' under the Guidelines.

Special and/or extraordinary expenses are defined in s. 7(1) of the Guidelines:

<blockquote><tt>(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;</tt></blockquote>
<blockquote><tt>(b) that portion of the medical and dental insurance premiums attributable to the child;</tt></blockquote>
<blockquote><tt>(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;</tt></blockquote>
<blockquote><tt>(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;</tt></blockquote>
<blockquote><tt>(e) expenses for post-secondary education; and</tt></blockquote>
<blockquote><tt>(f) extraordinary expenses for extracurricular activities.</tt></blockquote>

Section 7(1.1) clarifies (1)(d) and (1)(f), and says that for these subsections "extraordinary expenses" means:

<blockquote><tt>(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or</tt></blockquote>
<blockquote><tt>(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account</tt></blockquote>
<blockquote><blockquote><tt>(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) the nature and number of the educational programs and extracurricular activities,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) any special needs and talents of the child or children,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iv) the overall cost of the programs and activities, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(v) any other similar factor that the court considers relevant.</tt></blockquote></blockquote>

Special expenses are shared between the payor and recipient. These provisions of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, ''both'' parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.

If an expense if found to qualify as a special and/or extraordinary expense under the s. 7(1) and (1.1) definitions, the court may make an order that both parties pay additional amounts, on top of the usual Guidelines basic amount of support, to cover all or a portion of the cost of the expense.

===Qualifying expenses as "special and/or extraordinary"===

Just because an expense appears to fall into one of the categories listed in s. 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first.

According to s. 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:

#the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation," and
#the necessity of the expense in relation to the child's best interests,

The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by s. 7(1.1). Here's a helpful summary from a 2010 case from our Supreme Court, ''[http://canlii.ca/t/2dpzr Piper v. Piper]'', 2010 BCSC 1718:

<blockquote>"Under s. 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in s. 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in s. 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."</blockquote>

====Reasonableness====

When the court is asked to consider a particular expense, it should first decide whether the expense is reasonable according to the parties' means. For lower income parents not many things are going to be considered reasonable:

*Orthodontics, providing they are medically necessary.
*Daycare, providing the daycare is required to enable a parent to work outside the home.

For parents with more money, more expenses will qualify as special expenses:

*Cosmetic orthodontic work.
*Dance, music and art classes, and summer day camps.
*Less expensive team sports, like soccer, baseball and basketball.
*Basic high-school graduation costs, such as tickets and gown or tuxedo rentals.
*Basic post-secondary education costs, such as tuition fees for a local college or university, student fees and textbook costs.

For parents with lots of money, almost every big-ticket expense is probably going to be considered reasonable:

*Multiple week summer camps and trips abroad.
*Expensive team sports, like hockey and horseback polo, and expensive solo sports like skiing and scuba diving.
*Post-secondary education costs, including meal plans and residence costs.

To add a little confusion, however, remember what s. 7(1.1) says about what the requesting spouse can "reasonably cover". Where the parents have lots of money, and the resulting basic monthly child support is high, it’s unlikely that many extracurricular activities and educational expenses (those set out in s. 7(1)(d) and (e) of the Guidelines), would be considered ''extraordinary'' since a high basic child support amount would likely "reasonably cover" these costs.

====Necessity====

Sometimes the needs of the child will outweigh the cost of the expense to the child, and an expense will qualify as a special expense whether at a hardship to the parents or not.

*Medical costs, including costs that aren't covered by MSP such as autism therapies.
*Counselling services, where the counselling is necessary for the child's mental health.
*Tutoring services, where the child needs the extra help to get through school.
*Lessons or coaching in arts and sports, where the child has a special talent that should be nurtured.

A driver training course, for example, is unlikely to qualify as a special expense under the heading of necessity, since you can learn to drive and obtain a driver's licence without it, as was decided in a 2011 Supreme Court case, ''[http://canlii.ca/t/2fzs4 M.S.J. v. J.M.J.]'', 2011 BCSC 245. On the other hand, if a semester with Sylvan Learning Centre will mean the difference between passing or failing a grade, the tutoring would be considered a necessity.

===Sharing qualifying expenses===

Under s. 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.

The easiest way to calculate a parent's ''proportionate share'' is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.

Example #1

<blockquote>If one parent earns $75,000 per year and the other $25,000, the total pot available to the child is $100,000. Of that sum, the first parent contributes 75% and the second parent 25%. As a result, the first parent would be ordered to pay 75% of qualifying expenses, and the second parent 25%.
</blockquote>

Example #2

<blockquote>If one parent earns $48,000 per year and the other $62,000, the total of their incomes is $110,000. The first parent's income is 43.6% of the total, and the other parent's income is 56.4% of the total. The first parent would have to pay 43.6% of all qualifying special expenses, and the second would have to pay 54.6% of those expenses.</blockquote>

The cost that is being shared is the ''net cost'' of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are usually partly subsidized by the government with certain tax deductions. If $1,000 is spent on daycare, but the government chips in a $200 tax benefit, the amount of the expense shared between the parents would be $800, not the full $1,000.

Note that the income of a parent's new spouse or partner can be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835 the court held that the s. 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the income of a parent's new partner.

==The calculation of income==

Before the court even looks at the Child Support Guidelines tables it has to decide what the payor's income is. The tables set out the amount of child support payable according to the payor's income. The Guidelines require that the court use the most up-to-date information available. Sections 15 to 20 of the Guidelines set out the rules the court must apply in determining income.

According to Rule 5-1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and Rule 4 of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules], when someone makes an application for child support, the payor or both the payor and recipient are required to disclose their financial circumstances using a court form called a Financial Statement. Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically:

#the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
#all notices of assessment and reassessment received for the last three tax years,
#the party's most recent paystub, showing his or her earnings to date, or if the party isn't working, then his or her most recent WCB statement, social assistance statement, or EI statement, and
#business records like financial statements and corporate income tax returns, if the party has a company.

The basic rule of thumb is that a party's income for the purposes of the Guidelines is the amount stated at line 150 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. ''Income'' might include bonuses, rental income, company dividends, government benefits, interest from an investment and so forth, as well as employment and self-employment income.

Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. However, if a payor's current income can be known with certainty, such as if the payor is an employee without bonus or commission income, child support can be determined using the payor's current income.

===Government benefits===

Payments from WCB, Employment Insurance, CPP, Old Age Security, and welfare all count as income under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at his or her usual income. A temporary period on welfare, for example, won't entitle a payor to have his or her income assessed at that unusually low level.

===Fluctuating income===

Where a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the ''average'' of his or her income over the last three years.

===Unexpected losses and gains===

Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide to take this into consideration in setting the payor's income, and potentially not consider the loss or gain.

===Court awards===

If a payor has received an award from a civil court proceeding such as for wrongful dismissal or for personal injury, the court may attribute the portion of the award allocated for ''lost wages'' to a payor's income. The whole amount of the award, including the parts relating to pain and suffering, will not be seen as income for the purposes of the Guidelines, just the part intended to compensate for lost wages.

===Windfalls===

Money received from an inheritance, the sale of a house, or a lottery win does not count as income under the Guidelines. It might be family property that spouses have the right to share in, but it isn't income for the purposes of child support. Any interest or other investment income earned or that should reasonably be earned from the inheritance or lottery win would count as income.

==Imputing income==

To ''impute'' income means to attribute income to a payor above that which the payor claims he or she earns, usually for making a support award based on that higher amount. Typically, someone asks the court to impute income to a payor where:

#the payor works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns,
#the payor has quit or been fired from his or her job,
#the payor moves from full- to part-time work without a very good reason,
#the payor is self-employed and either receives unpaid benefits from his or her company (like a company car, paid meals or a free cell phone), or doesn't report the full amount of money taken from the company,
#the payor has refused to provide full and complete financial disclosure, or
#the payor has or will have income from a trust.

If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special and/or extraordinary expenses may be based on imputed income, including income imputed to the recipient.

The court can decide to impute income for the purposes of calculating child support in other circumstances, such as when the payor is underemployed and unemployed, is income splitting with a new partner, or lives in a place with a lower tax rate than usual.

===Underemployment and unemployment===

Section 19(1) of the Guidelines says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse's property is not reasonably utilized to generate income;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the spouse has failed to provide income information when under a legal obligation to do so;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the spouse unreasonably deducts expenses from income;</tt></blockquote></blockquote>

In other words, the court may decide that a payor has a different income than that which the payor says he or she has if:

#the payor has quit a job in order to avoid paying child support,
#the payor has taken lower-paying work than he or she used to have, or is capable of holding, in order to minimize the amount of child support payable,
#the payor has hidden or appears to have hidden some of his or her income,
#the payor is not using resources at hand that could generate income, such as a vacant house that could be rented out or savings that could be invested, or
#the payor has tried to reduce his or her income by claiming unreasonable deductions.

If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in s. 19(1) exist. In the case of underemployment or unemployment, you will also have to show that the payor has acted in ''bad faith'', and is unemployed or underemployed intentionally. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income.

It's not enough merely to ''argue'' that one of the conditions listed in s. 19(1) exist, you have to be able to ''provide evidence'' that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, ''[http://canlii.ca/t/1pt18 Nahu v. Chertkow]'', 2003 BCSC 1285 in determining whether a payor is intentionally underemployed or unemployed:

#the payor's education, training and work experience,
#the payor's previous earnings and past borrowing of funds during unemployment,
#the payor's work history,
#the payor's spending patterns and lifestyle,
#the payor's efforts to upgrade his or her education and work qualifications,
#the nature and quality of the payor's attempts to obtain employment, and
#any evidence that the underemployment or unemployment is motivated by ill will towards the recipient.

This last point, about the payor's ill will, has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 Supreme Court case ''[http://canlii.ca/t/1d2x1 Hanson v. Hanson]'', 1999 CanLII 6307 the court had this to say on the subject:

<blockquote>"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...</blockquote>
<blockquote>"2. When imputing income on the basis of intentional underemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as the availability of work, freedom to relocate and other obligations.</blockquote>
<blockquote>"3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be earned on the job. ... [C]ourts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.</blockquote>
<blockquote>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</blockquote>
<blockquote>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</blockquote>
<blockquote>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</blockquote>

==="Grossing up" income===

Section 19(1) of the Guidelines also says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(b) the spouse is exempt from paying federal or provincial income tax;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.</tt></blockquote></blockquote>

Under these sections of the Guidelines, payors who have a lower income tax obligation than usual, such as certain First Nations persons living on reserve who might pay no federal taxes, or persons who live in another country with a lower tax rate, can have their income ''grossed up'' to reflect this tax advantage when child support is determined.

The grossing up process essentially involves figuring out the amount of money the payor would have to earn to have the same after-tax income at the tax rates normally applicable to residents of British Columbia. This will result in income being imputed to the payor for the purposes of calculating child support, with a consequent increase in the amount of child support that will be payable.

The math behind grossing up someone's income is a bit complex. Essentially, the idea is to figure out the amount of income the person would have to earn before taxes to receive the amount he or she earns net of taxes. Think of it like this:

<blockquote>Say Mr. A earns $100,000 per year. As a resident of British Columbia, Mr. A pays income tax at, for example, 40%. This means that Mr. A's income, net of taxes, is $60,000 per year.</blockquote>
<blockquote>Mr. B also earns $100,000 per year. Mr. B, on the other hand, lives in Texas, and has an income tax rate of, for example, 25%. This means that Mr. B's net income is $75,000 per year.</blockquote>
<blockquote>Income for the purposes of the Guidelines would normally be calculated for both Mr. A and Mr. B at a gross income of $100,000. In reality, though, Mr. A has a lot less money after income taxes are paid than Mr. B does. Mr. B actually has a lot more money than Mr. A, and ought to pay child support based on this additional money.</blockquote>
<blockquote>Mr. B's income would be "grossed up" to figure out what income he would have to earn in BC to have an after-tax income of $75,000. Since he would pay income tax at a rate of 40% here, the court would consider Mr. B to have a gross income of $125,000 for the purposes of child support, since tax of 40% on a gross income of $125,000 leaves a net income of $75,000.</blockquote>
<blockquote>Mr. A and Mr. B both have incomes of $100,000 per year. Mr. A will pay his base amount of support at that income, but Mr. B will pay at a grossed up income of $125,000 to reflect what he would have to earn in BC to have the after-tax income of $75,000 he has living in Texas.</blockquote>

Grossing up a payor's income can be a bit tricky, and requires a knowledge of the income tax laws applicable to First Nations payors earning income on First Nations reserve lands and to payors earning income outside of Canada. If you have a problem in this area, you should consider retaining a lawyer to help you.

==Child support and parents' new partners==

Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to his or her income in calculating child support. The new partner will want to know whether he or she is now on the hook for support and must contribute to the parent's payments or towards the parent's children.

===Basic child support payments===

The income of a parent's new partner is not relevant to the payment of child support, nor is a payor's new partner obliged to pay child support. The new partner will not inherit the child support obligation in the event the payor dies, and the recipient of support won't be able to pursue the new partner for continuing or supplemental payments.

For the purposes of calculating the base amount of child support a parent must pay — that is, the parent's basic obligation under the Child Support Guidelines, before special and/or extraordinary expenses — the court will only look at the parent's income. The income of the new partner is not taken into account.

===Undue hardship claims===

Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause ''undue hardship'' if the table amount was paid. Payors will claim that the base amount is too high, while recipients will argue that it is too low. This chapter discusses exceptions to the Guidelines more thoroughly in the section, [[Exceptions to the Child Support Guidelines]].

If undue hardship is claimed, the court will look at the standard of living of each parent's ''household'', rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support; it just means that his or her income will be added to the parent's income to see whether the usual table amount of support payable is unduly high or low.

===Incomes in excess of $150,000===

The tables provided in the Child Support Guidelines set out the amount of support owing by payors who earn up to $150,000 per year. The Guidelines provide a mathematical formula for figuring out what parents earning more than $150,000 must pay, while payors earning less than $10,800 pay nothing.

Section 4 of the Guidelines deals with parents who earn more than $150,000 each year. Under this section, the income (or lack of income) of a parent's new partner may be taken into account in deciding whether the formula gives a fair result. The calculation of support owing by parents with incomes in excess of $150,000 is discussed in more detail in [[Exceptions to the Child Support Guidelines]].

Section 4(b)(ii) of the Guidelines says that when considering the amount payable above the basic amount for a payor whose annual income is $150,000, the court should apply the formula but take into account:

<blockquote><tt>... the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children ...</tt></blockquote>

In other words, the income of a new partner can be taken into account under the general heading of "financial ability" of a spouse in determining whether the formula amount is fair.

===Special expenses===

Section 7 of the Guidelines allows for sharing of the children's special and/or extraordinary expenses between the parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into account, among other things "the reasonableness of the expense in relation to the means of the spouses and those of the child."

A parent's new partner's income can be taken into consideration in assessing the "means of the spouses," which is exactly what the court did in the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835. In that decision, the court held that ''means of the spouses'' should be interpreted broadly as including all of the means available to the paying parent, including the income of his or her new partner.

Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income.

===Death of the payor===

A number of readers have asked whether they will have any responsibility to make child support payments if their partner, a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.

While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a ''stepparent'' of the child under the ''[[Family Law Act]]''. The act says that all parents, guardians, and stepparents are required to support their children, but s. 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least of one year. In other words, a new partner who marries a paying parent may have an obligation if he or she has contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.

==Agreements and orders for child support==

===Orders for child support===

An order for child support typically contains the following elements:

#a statement of the names and birthdates of the children for whom support will be paid,
#a declaration of the payor's income,
#an order as to the Guidelines amount payable,
#an order about the exchange of income information, and
#a statement of the date on which child support will no longer be payable.

These elements look like this in a typical order made under the ''[[Divorce Act]]'':

<blockquote><tt>UPON the Court being advised that the children of the marriage are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 1998, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2000;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children of the marriage" as defined by the ''Divorce Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children of the marriage," and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, continuing until such time as the children are no longer "children of the marriage." </tt></blockquote>

Under the ''[[Family Law Act]]'', the order would look like this:

<blockquote><tt>UPON the Court being advised that the children are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 1998, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2000;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the Family Relations Act; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act'', and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, continuing until such time as the children are no longer "children." </tt></blockquote>

The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of his or her income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

When parents have ''shared custody'' or ''split custody'' of their children, the amount paid is dependant on both parties' incomes. The same is true where special expenses are being contributed to; the proportion of those expenses each party will pay depends on both of their incomes. In cases like these, the last clause would be changed to require both parents to exchange their income information on an annual basis, not just the payor, and the court would make a finding about both parents' incomes.

===Agreements for child support===

Separation agreements, like all family law agreements, have two types of statements. The ''recitals'' are statements that talk about the parties and their relationship. They explain the parties' background and why they signed their agreement. The ''operative clauses'' of an agreement are statements that say what each party has promised to do.

The recitals to a separation agreement about child support would include statements like these:

<blockquote><tt>D. Jane Doe is a plumber working for ABC Plumbing, earning about $72,000 per year.</tt></blockquote>
<blockquote><tt>E. John Doe is a graphic artist working for Sunny Skies Art and Design, earning about $40,000 per year.</tt></blockquote>
<blockquote><tt>F. Jane and John have two children, Jesse, who is 15, and Sandra who is 13.</tt></blockquote>

The operative clauses about child support might say something like this:

<blockquote><tt>15. Jane will pay child support to John in the amount of $1,092 per month, beginning on 1 April 2013 and continuing on the first day of each month afterwards while Jesse and Sandra remain "children" as defined by the ''Family Law Act''.</tt></blockquote>
<blockquote><tt>16. Jane will give John a copy of her tax return on the first day of May 2014 and continuing on the first day of May of every year thereafter while Jesse and Sandra remain "children" as defined by the ''Family Law Act''. Jane will give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment she received within two weeks of receiving it for so long as the children are still "children."</tt></blockquote>

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-16.html#h-15 simplified Child Support Guidelines Tables for British Columbia] are available from the website of the federal Department of Justice. The federal government has published an [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp online child support calculator].

The provincial government also operates the BC Child Support Info Line which offers free information about child support and the child support tables. Contact the Info Line at:

<blockquote>Lower Mainland: 604-660-2192 
Outside the Lower Mainland: 888-216-2211</blockquote>


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-16.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp Online Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1175 BC Ministry of Justice: FMEP Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support]
* [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society Family Law Website: Child support]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2014-10-09T00:27:43Z

Eugene Raponi:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Eugene Raponi|Eugene Raponi, QC]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Often simply referred to as the Guidelines, the [http://canlii.ca/t/80mh Child Support Guidelines], SOR/97-175, is a federal regulation, adopted by all of the provinces except Quebec, that describes the rules that the courts must apply when making an order for child support.

The most important feature of the Guidelines is the child support tables that fix the amount of support payments according to the annual income of the person paying support and the number of children the support is to be paid for.

The Guidelines cover every aspect of child support, including the calculation of income, how children's special expenses are paid for, the amount of support payable when the parents have the children for an almost equal amount of time, and the amount payable when one or more of the children live full-time with each parent.

This section talks about the basic principles of the Guidelines, the sharing of special and extraordinary expenses, the calculation of income, imputing income, and the circumstances in which the income of a parent's or guardian's new partner may be taken into account. It also provides an example of the contents of a typical child support order.

==Basic principles==

It used to be the case that the party claiming support, the ''recipient'', had to jump through all sorts of hoops to show the amount of support the child needed and prove that the person being asked to pay support, the ''payor'', had the means to pay that amount. These days, the amount of a child support order or an agreement for child support is based on the amounts set out in the tables attached to the Child Support Guidelines. The Guidelines have generally reduced the amount of time and money that parents spend fighting about child support, whether they're in court arguing about an order, or are negotiating the amount of support for a separation agreement.

The Guidelines tables were most recently adjusted on 31 December 2011. The amount of child support required of lower earning parents was reduced and the amount of support for higher earning parents was increased, although none of the changes were particularly dramatic. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts.

The Guidelines' key presumption is set out in s. 3(1):

<blockquote><tt>Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the amount, if any, determined under s. 7.</tt></blockquote></blockquote>

This is, however, only a presumption, and can be challenged or ''rebutted'', as is discussed in this chapter's next section, [[Exceptions to the Child Support Guidelines]]. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross annual income at the time the order is made.

Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order so that the amount of child support reflects the payor's current income. The payor would typically make the application if his or her income has fallen, while the recipient would make the application when the payor's income has increased. To avoid a situation where parents are continually making trips back to court to seek an adjustment of child support, it's a good idea to include a term that requires both parties to regularly exchange income information in an agreement or order for child support, so that child support can be adjusted from time to time without having to go to court.

Another of the Guidelines' important presumptions is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligation is not based on the Guidelines amount for the total number of five children.

Finally, the amount of support payable is based only on the payor's income. In most situations the recipient's income is not a factor, nor is the income of the payor's new spouse or partner.

==Special and/or extraordinary expenses==

The basic amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the child's share of the rent, the hydro and gas bills, shoes, groceries, diapers, clothes, toothpaste, school field trip fees and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, a payor may also be required to cover a portion of these other expenses, so long as they qualify as ''special and/or extraordinary expenses'' under the Guidelines.

Special and/or extraordinary expenses are defined in s. 7(1) of the Guidelines:

<blockquote><tt>(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;</tt></blockquote>
<blockquote><tt>(b) that portion of the medical and dental insurance premiums attributable to the child;</tt></blockquote>
<blockquote><tt>(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;</tt></blockquote>
<blockquote><tt>(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;</tt></blockquote>
<blockquote><tt>(e) expenses for post-secondary education; and</tt></blockquote>
<blockquote><tt>(f) extraordinary expenses for extracurricular activities.</tt></blockquote>

Section 7(1.1) clarifies (1)(d) and (1)(f), and says that for these subsections "extraordinary expenses" means:

<blockquote><tt>(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or</tt></blockquote>
<blockquote><tt>(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account</tt></blockquote>
<blockquote><blockquote><tt>(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) the nature and number of the educational programs and extracurricular activities,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iii) any special needs and talents of the child or children,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(iv) the overall cost of the programs and activities, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(v) any other similar factor that the court considers relevant.</tt></blockquote></blockquote>

Special expenses are shared between the payor and recipient. These provisions of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, ''both'' parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.

If an expense if found to qualify as a special and/or extraordinary expense under the s. 7(1) and (1.1) definitions, the court may make an order that both parties pay additional amounts, on top of the usual Guidelines basic amount of support, to cover all or a portion of the cost of the expense.

===Qualifying expenses as "special and/or extraordinary"===

Just because an expense appears to fall into one of the categories listed in s. 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first.

According to s. 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:

#the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation," and
#the necessity of the expense in relation to the child's best interests,

The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by s. 7(1.1). Here's a helpful summary from a 2010 case from our Supreme Court, ''[http://canlii.ca/t/2dpzr Piper v. Piper]'', 2010 BCSC 1718:

<blockquote>"Under s. 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in s. 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in s. 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."</blockquote>

====Reasonableness====

When the court is asked to consider a particular expense, it should first decide whether the expense is reasonable according to the parties' means. For lower income parents not many things are going to be considered reasonable:

*Orthodontics, providing they are medically necessary.
*Daycare, providing the daycare is required to enable a parent to work outside the home.

For parents with more money, more expenses will qualify as special expenses:

*Cosmetic orthodontic work.
*Dance, music and art classes, and summer day camps.
*Less expensive team sports, like soccer, baseball and basketball.
*Basic high-school graduation costs, such as tickets and gown or tuxedo rentals.
*Basic post-secondary education costs, such as tuition fees for a local college or university, student fees and textbook costs.

For parents with lots of money, almost every big-ticket expense is probably going to be considered reasonable:

*Multiple week summer camps and trips abroad.
*Expensive team sports, like hockey and horseback polo, and expensive solo sports like skiing and scuba diving.
*Post-secondary education costs, including meal plans and residence costs.

To add a little confusion, however, remember what s. 7(1.1) says about what the requesting spouse can "reasonably cover". Where the parents have lots of money, and the resulting basic monthly child support is high, it’s unlikely that many extracurricular activities and educational expenses (those set out in s. 7(1)(d) and (e) of the Guidelines), would be considered ''extraordinary'' since a high basic child support amount would likely "reasonably cover" these costs.

====Necessity====

Sometimes the needs of the child will outweigh the cost of the expense to the child, and an expense will qualify as a special expense whether at a hardship to the parents or not.

*Medical costs, including costs that aren't covered by MSP such as autism therapies.
*Counselling services, where the counselling is necessary for the child's mental health.
*Tutoring services, where the child needs the extra help to get through school.
*Lessons or coaching in arts and sports, where the child has a special talent that should be nurtured.

A driver training course, for example, is unlikely to qualify as a special expense under the heading of necessity, since you can learn to drive and obtain a driver's licence without it, as was decided in a 2011 Supreme Court case, ''[http://canlii.ca/t/2fzs4 M.S.J. v. J.M.J.]'', 2011 BCSC 245. On the other hand, if a semester with Sylvan Learning Centre will mean the difference between passing or failing a grade, the tutoring would be considered a necessity.

===Sharing qualifying expenses===

Under s. 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.

The easiest way to calculate a parent's ''proportionate share'' is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.

Example #1

<blockquote>If one parent earns $75,000 per year and the other $25,000, the total pot available to the child is $100,000. Of that sum, the first parent contributes 75% and the second parent 25%. As a result, the first parent would be ordered to pay 75% of qualifying expenses, and the second parent 25%.
</blockquote>

Example #2

<blockquote>If one parent earns $48,000 per year and the other $62,000, the total of their incomes is $110,000. The first parent's income is 43.6% of the total, and the other parent's income is 56.4% of the total. The first parent would have to pay 43.6% of all qualifying special expenses, and the second would have to pay 54.6% of those expenses.</blockquote>

The cost that is being shared is the ''net cost'' of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are usually partly subsidized by the government with certain tax deductions. If $1,000 is spent on daycare, but the government chips in a $200 tax benefit, the amount of the expense shared between the parents would be $800, not the full $1,000.

Note that the income of a parent's new spouse or partner can be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835 the court held that the s. 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the income of a parent's new partner.

==The calculation of income==

Before the court even looks at the Child Support Guidelines tables it has to decide what the payor's income is. The tables set out the amount of child support payable according to the payor's income. The Guidelines require that the court use the most up-to-date information available. Sections 15 to 20 of the Guidelines set out the rules the court must apply in determining income.

According to Rule 5-1 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and Rule 4 of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules], when someone makes an application for child support, the payor or both the payor and recipient are required to disclose their financial circumstances using a court form called a Financial Statement. Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically:

#the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
#all notices of assessment and reassessment received for the last three tax years,
#the party's most recent paystub, showing his or her earnings to date, or if the party isn't working, then his or her most recent WCB statement, social assistance statement, or EI statement, and
#business records like financial statements and corporate income tax returns, if the party has a company.

The basic rule of thumb is that a party's income for the purposes of the Guidelines is the amount stated at line 150 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. ''Income'' might include bonuses, rental income, company dividends, government benefits, interest from an investment and so forth, as well as employment and self-employment income.

Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. However, if a payor's current income can be known with certainty, such as if the payor is an employee without bonus or commission income, child support can be determined using the payor's current income.

===Government benefits===

Payments from WCB, Employment Insurance, CPP, Old Age Security, and welfare all count as income under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at his or her usual income. A temporary period on welfare, for example, won't entitle a payor to have his or her income assessed at that unusually low level.

===Fluctuating income===

Where a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the ''average'' of his or her income over the last three years.

===Unexpected losses and gains===

Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide to take this into consideration in setting the payor's income, and potentially not consider the loss or gain.

===Court awards===

If a payor has received an award from a civil court proceeding such as for wrongful dismissal or for personal injury, the court may attribute the portion of the award allocated for ''lost wages'' to a payor's income. The whole amount of the award, including the parts relating to pain and suffering, will not be seen as income for the purposes of the Guidelines, just the part intended to compensate for lost wages.

===Windfalls===

Money received from an inheritance, the sale of a house, or a lottery win does not count as income under the Guidelines. It might be family property that spouses have the right to share in, but it isn't income for the purposes of child support.

==Imputing income==

To ''impute'' income means to attribute income to a payor above that which the payor claims he or she earns, usually for making a support award based on that higher amount. Typically, someone asks the court to impute income to a payor where:

#the payor works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns,
#the payor has quit or been fired from his or her job,
#the payor moves from full- to part-time work without a very good reason,
#the payor is self-employed and either receives unpaid benefits from his or her company (like a company car, paid meals or a free cell phone), or doesn't report the full amount of money taken from the company,
#the payor has refused to provide full and complete financial disclosure, or
#the payor has or will have income from a trust.

If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special and/or extraordinary expenses may be based on imputed income, including income imputed to the recipient.

The court can decide to impute income for the purposes of calculating child support in other circumstances, such as when the payor is underemployed and unemployed, is income splitting with a new partner, or lives in a place with a lower tax rate than usual.

===Underemployment and unemployment===

Section 19(1) of the Guidelines says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse's property is not reasonably utilized to generate income;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) the spouse has failed to provide income information when under a legal obligation to do so;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) the spouse unreasonably deducts expenses from income;</tt></blockquote></blockquote>

In other words, the court may decide that a payor has a different income than that which the payor says he or she has if:

#the payor has quit a job in order to avoid paying child support,
#the payor has taken lower-paying work than he or she used to have, or is capable of holding, in order to minimize the amount of child support payable,
#the payor has hidden or appears to have hidden some of his or her income,
#the payor is not using resources at hand that could generate income, such as a vacant house that could be rented out or savings that could be invested, or
#the payor has tried to reduce his or her income by claiming unreasonable deductions.

If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in s. 19(1) exist. In the case of underemployment or unemployment, you will also have to show that the payor has acted in ''bad faith'', and is unemployed or underemployed intentionally. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income.

It's not enough merely to ''argue'' that one of the conditions listed in s. 19(1) exist, you have to be able to ''provide evidence'' that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, ''[http://canlii.ca/t/1pt18 Nahu v. Chertkow]'', 2003 BCSC 1285 in determining whether a payor is intentionally underemployed or unemployed:

#the payor's education, training and work experience,
#the payor's previous earnings and past borrowing of funds during unemployment,
#the payor's work history,
#the payor's spending patterns and lifestyle,
#the payor's efforts to upgrade his or her education and work qualifications,
#the nature and quality of the payor's attempts to obtain employment, and
#any evidence that the underemployment or unemployment is motivated by ill will towards the recipient.

This last point, about the payor's ill will, has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 Supreme Court case ''[http://canlii.ca/t/1d2x1 Hanson v. Hanson]'', 1999 CanLII 6307 the court had this to say on the subject:

<blockquote>"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...</blockquote>
<blockquote>"2. When imputing income on the basis of intentional underemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as the availability of work, freedom to relocate and other obligations.</blockquote>
<blockquote>"3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be earned on the job. ... [C]ourts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.</blockquote>
<blockquote>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</blockquote>
<blockquote>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</blockquote>
<blockquote>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</blockquote>

==="Grossing up" income===

Section 19(1) of the Guidelines also says that:

<blockquote><tt>The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:</tt></blockquote>
<blockquote><blockquote><tt>(b) the spouse is exempt from paying federal or provincial income tax;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.</tt></blockquote></blockquote>

Under these sections of the Guidelines, payors who have a lower income tax obligation than usual, such as certain First Nations persons living on reserve who might pay no federal taxes, or persons who live in another country with a lower tax rate, can have their income ''grossed up'' to reflect this tax advantage when child support is determined.

The grossing up process essentially involves figuring out the amount of money the payor would have to earn to have the same after-tax income at the tax rates normally applicable to residents of British Columbia. This will result in income being imputed to the payor for the purposes of calculating child support, with a consequent increase in the amount of child support that will be payable.

The math behind grossing up someone's income is a bit complex. Essentially, the idea is to figure out the amount of income the person would have to earn before taxes to receive the amount he or she earns net of taxes. Think of it like this:

<blockquote>Say Mr. A earns $100,000 per year. As a resident of British Columbia, Mr. A pays income tax at, for example, 40%. This means that Mr. A's income, net of taxes, is $60,000 per year.</blockquote>
<blockquote>Mr. B also earns $100,000 per year. Mr. B, on the other hand, lives in Texas, and has an income tax rate of, for example, 25%. This means that Mr. B's net income is $75,000 per year.</blockquote>
<blockquote>Income for the purposes of the Guidelines would normally be calculated for both Mr. A and Mr. B at a gross income of $100,000. In reality, though, Mr. A has a lot less money after income taxes are paid than Mr. B does. Mr. B actually has a lot more money than Mr. A, and ought to pay child support based on this additional money.</blockquote>
<blockquote>Mr. B's income would be "grossed up" to figure out what income he would have to earn in BC to have an after-tax income of $75,000. Since he would pay income tax at a rate of 40% here, the court would consider Mr. B to have a gross income of $125,000 for the purposes of child support, since tax of 40% on a gross income of $125,000 leaves a net income of $75,000.</blockquote>
<blockquote>Mr. A and Mr. B both have incomes of $100,000 per year. Mr. A will pay his base amount of support at that income, but Mr. B will pay at a grossed up income of $125,000 to reflect what he would have to earn in BC to have the after-tax income of $75,000 he has living in Texas.</blockquote>

Grossing up a payor's income can be a bit tricky, and requires a knowledge of the income tax laws applicable to First Nations payors earning income on First Nations reserve lands and to payors earning income outside of Canada. If you have a problem in this area, you should consider retaining a lawyer to help you.

==Child support and parents' new partners==

Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to his or her income in calculating child support. The new partner will want to know whether he or she is now on the hook for support and must contribute to the parent's payments or towards the parent's children.

===Basic child support payments===

The income of a parent's new partner is not relevant to the payment of child support, nor is a payor's new partner obliged to pay child support. The new partner will not inherit the child support obligation in the event the payor dies, and the recipient of support won't be able to pursue the new partner for continuing or supplemental payments.

For the purposes of calculating the base amount of child support a parent must pay — that is, the parent's basic obligation under the Child Support Guidelines, before special and/or extraordinary expenses — the court will only look at the parent's income. The income of the new partner is not taken into account.

===Undue hardship claims===

Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause ''undue hardship'' if the table amount was paid. Payors will claim that the base amount is too high, while recipients will argue that it is too low. This chapter discusses exceptions to the Guidelines more thoroughly in the section, [[Exceptions to the Child Support Guidelines]].

If undue hardship is claimed, the court will look at the standard of living of each parent's ''household'', rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support; it just means that his or her income will be added to the parent's income to see whether the usual table amount of support payable is unduly high or low.

===Incomes in excess of $150,000===

The tables provided in the Child Support Guidelines set out the amount of support owing by payors who earn up to $150,000 per year. The Guidelines provide a mathematical formula for figuring out what parents earning more than $150,000 must pay, while payors earning less than $10,800 pay nothing.

Section 4 of the Guidelines deals with parents who earn more than $150,000 each year. Under this section, the income (or lack of income) of a parent's new partner may be taken into account in deciding whether the formula gives a fair result. The calculation of support owing by parents with incomes in excess of $150,000 is discussed in more detail in [[Exceptions to the Child Support Guidelines]].

Section 4(b)(ii) of the Guidelines says that when considering the amount payable above the basic amount for a payor whose annual income is $150,000, the court should apply the formula but take into account:

<blockquote><tt>... the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children ...</tt></blockquote>

In other words, the income of a new partner can be taken into account under the general heading of "financial ability" of a spouse in determining whether the formula amount is fair.

===Special expenses===

Section 7 of the Guidelines allows for sharing of the children's special and/or extraordinary expenses between the parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into account, among other things "the reasonableness of the expense in relation to the means of the spouses and those of the child."

A parent's new partner's income can be taken into consideration in assessing the "means of the spouses," which is exactly what the court did in the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835. In that decision, the court held that ''means of the spouses'' should be interpreted broadly as including all of the means available to the paying parent, including the income of his or her new partner.

Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income.

===Death of the payor===

A number of readers have asked whether they will have any responsibility to make child support payments if their partner, a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.

While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a ''stepparent'' of the child under the ''[[Family Law Act]]''. The act says that all parents, guardians, and stepparents are required to support their children, but s. 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least of one year. In other words, a new partner who marries a paying parent may have an obligation if he or she has contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.

==Agreements and orders for child support==

===Orders for child support===

An order for child support typically contains the following elements:

#a statement of the names and birthdates of the children for whom support will be paid,
#a declaration of the payor's income,
#an order as to the Guidelines amount payable,
#an order about the exchange of income information, and
#a statement of the date on which child support will no longer be payable.

These elements look like this in a typical order made under the ''[[Divorce Act]]'':

<blockquote><tt>UPON the Court being advised that the children of the marriage are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 1998, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2000;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children of the marriage" as defined by the ''Divorce Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children of the marriage," and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, continuing until such time as the children are no longer "children of the marriage." </tt></blockquote>

Under the ''[[Family Law Act]]'', the order would look like this:

<blockquote><tt>UPON the Court being advised that the children are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 1998, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2000;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the Family Relations Act; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act'', and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, continuing until such time as the children are no longer "children." </tt></blockquote>

The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of his or her income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

When parents have ''shared custody'' or ''split custody'' of their children, the amount paid is dependant on both parties' incomes. The same is true where special expenses are being contributed to; the proportion of those expenses each party will pay depends on both of their incomes. In cases like these, the last clause would be changed to require both parents to exchange their income information on an annual basis, not just the payor, and the court would make a finding about both parents' incomes.

===Agreements for child support===

Separation agreements, like all family law agreements, have two types of statements. The ''recitals'' are statements that talk about the parties and their relationship. They explain the parties' background and why they signed their agreement. The ''operative clauses'' of an agreement are statements that say what each party has promised to do.

The recitals to a separation agreement about child support would include statements like these:

<blockquote><tt>D. Jane Doe is a plumber working for ABC Plumbing, earning about $72,000 per year.</tt></blockquote>
<blockquote><tt>E. John Doe is a graphic artist working for Sunny Skies Art and Design, earning about $40,000 per year.</tt></blockquote>
<blockquote><tt>F. Jane and John have two children, Jesse, who is 15, and Sandra who is 13.</tt></blockquote>

The operative clauses about child support might say something like this:

<blockquote><tt>15. Jane will pay child support to John in the amount of $1,092 per month, beginning on 1 April 2013 and continuing on the first day of each month afterwards while Jesse and Sandra remain "children" as defined by the ''Family Law Act''.</tt></blockquote>
<blockquote><tt>16. Jane will give John a copy of her tax return on the first day of May 2014 and continuing on the first day of May of every year thereafter while Jesse and Sandra remain "children" as defined by the ''Family Law Act''. Jane will give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment she received within two weeks of receiving it for so long as the children are still "children."</tt></blockquote>

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-16.html#h-15 simplified Child Support Guidelines Tables for British Columbia] are available from the website of the federal Department of Justice. The federal government has published an [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp online child support calculator].

The provincial government also operates the BC Child Support Info Line which offers free information about child support and the child support tables. Contact the Info Line at:

<blockquote>Lower Mainland: 604-660-2192 
Outside the Lower Mainland: 888-216-2211</blockquote>


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Links===

* [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-16.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp Online Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1175 BC Ministry of Justice: FMEP Child Support Calculator]
* [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support]
* [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society Family Law Website: Child support]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

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[[Category:JP Boyd on Family Law]]

Child Support

2014-10-09T00:17:45Z

Eugene Raponi: /* Getting a child support order */

{{JPBOFL Start Chapter
|Related = [[Child Support Guidelines|The Guidelines]]{{·}}[[Exceptions to the Child Support Guidelines|Exceptions to the Guidelines]]
{{·}}[[Making Changes to Child Support|Making Changes]]{{·}}[[Child Support Arrears]]
}}
{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Eugene Raponi|Eugene Raponi, QC]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]], which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

This section discusses the basics of child support, and child support orders under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at how to get a child support order inside and outside of British Columbia. It also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support.

Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also discuss [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].

==Introduction==

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing. 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.

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 as a result of the child's needs, and the payment of child support consequently helps 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. Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and almost unrelated to parenting time, contact, or access.

Child support is payable on the principle that both parents have a duty to financially contribute to their child's upbringing. The simple fact of biological parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.

An order for child support can be made under s. 15.1 of the federal ''[[Divorce Act]]'' or s. 149 of the provincial ''[[Family Law Act]]'', or a couple can agree on child support in a separation agreement. Either way, the amount of support awarded must, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contains a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described later in this chapter. The tables were most recently updated on 31 December 2011. For most people, the changes resulted in an increase in the amount of child support payable.

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take precedence.

==The ''Divorce Act''==

The ''Divorce Act'' only applies to people who are or were married to each other, including a parent and a stepparent who are married to each other. A court can only make an order for child support under the ''Divorce Act'' if it has or had the jurisdiction to make an order for the spouses' divorce: the spouses must be or have been legally married, and the spouse making the application must have lived in the province where the application is made for at least one year. Applications under the ''Divorce Act'' can only be heard by the Supreme Court, not the Provincial Court.

Child support is considered so important that a court may not even grant the parties a divorce unless the judge is satisfied that adequate financial provisions are made for the children. You can find more information on [[Divorce#Child support|child support in the context of divorce orders]] in the chapter [[Separation & Divorce]], in the section on [[Divorce#Child support|Divorce: 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" in order to be eligible for support. There are a couple of important definitions in s. 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>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</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, s. 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><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>

Taken together these definitions mean that:

#child support can be owing from an adoptive parent, as well as a natural parent,
#child support can be owing from stepparents (spouses who "stand in the place of a parent"),
#child support is payable until a child reaches the age of majority in the province where the child lives, and
#child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care.

On this last point, the ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as he or she cannot "withdraw from the charge" of his or her parents. The two main reasons why a child might not be able to withdraw are because the child is going to college or university, or because the child has a serious, chronic illness that prevents him or her from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies him or her as a "child of the marriage" include the following:

#the age of the adult child,
#whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
#the child's academic performance and dedication to his or her studies,
#the spouses' financial situation, and
#any plans the spouses may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program.

As far as "age of majority" is concerned, keep in mind that it is the provinces that have the authority to set the age of majority, not the federal government. In British Columbia, the age of majority is 19. In other provinces the age of majority is 18.

===Statutory provisions===

The primary sections of the ''[[Divorce Act]]'' dealing with child support are these:

*s. 2: definitions
*s. 4: jurisdiction to make child support orders
*s. 5: jurisdiction to change orders
*s. 15.1: child support
*s. 15.3: child support has priority over spousal support
*s. 17: variation proceedings

==The ''Family Law Act''==

A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses or in another unmarried relationship, or if they were in no particular relationship with each other at all. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.

Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.

===Qualifying for child support===

Definitions play an important role in determining eligibility and responsibility for child support under the ''[[Family Law Act]]'', just as they do under the ''[[Divorce Act]]''. Section 147 of the ''[[Family Law Act]]'' says that each parent and guardian of a child is responsible for the support of that child, and s. 146 defines ''child'', ''parent'' and ''guardian'' as follows:

<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;</tt></blockquote>
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>

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

<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, s. 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><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><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>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated.

As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:

*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other.
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between the parent and child may be taken into consideration when determining child support obligations and amounts.
*Child support can be payable by guardians and stepparents.
*The definition of "stepparent" includes anyone who has been the spouse of a parent and contributed to the support of his or her child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
*Child support can be payable by more than one parent, guardian, and stepparent at the same time.
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of his or her parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondary education.

On this last point, the factors a court will consider in determining whether a child's academic career continues to qualify the child for support include the following:

*the age of the adult child,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
*the child's academic performance and dedication to his or her studies,
*the financial situations of the child's parents, guardians and stepparents, and
*any plans the parties may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parties have a very high income and had always expected that the child would take an advanced degree, child support can be payable for more than one degree program, but this is the exception rather than the rule.

===Stepparents and child support===

The ''[[Family Law Act]]'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, a case decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, 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:

#the marriage was short,
#the stepparent's relationship with the child broke down shortly into the marriage,
#the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
#the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,
#the child's biological parent was paying support, and
#the parent had extended health and dental coverage for the child through the parent's employment.

The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:

<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, 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.

===Securing a child support obligation===

Under s. 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,
#require a payor with life insurance to maintain that policy and specify that a spouse or a child will be the beneficiary of the policy, or
#order that child support continue to be paid after the payor's death and be paid from his or her estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under s. 171(1), the court must consider:

#whether the recipient's need for support will survive the payor's death,
#whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and,
#whether any other means exist to meet the recipient's needs.

===Child support when the payor dies===

When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) that the payor's support obligation will continue and be paid from his or her 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.

===Statutory provisions===

The primary sections of the ''[[Family Law Act]]'' dealing with child support are these:

*s. 1: definitions
*s. 146: more definitions
*s. 147: duty to pay child support
*s. 148: agreements about child support
*s. 149: orders about child support
*s. 150: determining how much child support should be paid
*s. 152: varying orders about child support
*s. 170: securing a child support obligation
*s. 173: child support has priority over spousal support

==Getting a child support order==

There are five things the court must consider before a child support order can be made:

*Does the person asking for the order have the right to claim child support?
*Is the child entitled to receive child support?
*Is the person against whom the order is sought obliged to pay child support?
*How long should the child receive support?
*How much support should the child receive?

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. Under the ''[[Divorce Act]]'', the applicant must be a spouse who has lived in the province in which they 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.

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 his or her parents or guardians.

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.

If the first three conditions have been met, the court must then figure out how much the payor should pay. This is pretty easy for parents, but can be more difficult for guardians who are not parents and for stepparents. The court must first make a finding as to the payor's annual income, usually with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]].

Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements limit themselves by providing that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a termination date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier.

===Getting an order inside British Columbia===

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. Whichever court the parent or guardian wants to proceed in, he or she must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].

===Getting an order outside British Columbia===

A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:

#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',
#start a court proceeding in the place where the other parent lives, or
#start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and try to enforce that order in the place where the other parent lives.

The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out a bunch of paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Reciprocals Office] where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be the ''Family Law Act'' or the ''Divorce Act''.

Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the place 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]]''.

The countries that will cooperate with a proceeding under the ''[[Interjurisdictional Support Orders Act]]'' are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom and Northern Ireland, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] on [[CanLII]] or the [http://www.bclaws.ca/default.html BC Laws] website, for the current list.

The British Columbia Reciprocals Office, along with all of the forms required by the ''Interjurisdictional Support Orders Act'', can be found at [http://www.isoforms.bc.ca www.isoforms.bc.ca].

==Income tax considerations==

It used to be the case that the person paying child support could claim an income tax deduction for his or her support payments, while the recipient had to claim it as taxable income. On 25 April 1997, the federal ''[http://canlii.ca/t/7vb7 Income Tax Act]'' was amended to do away with this rule, and now child support payments are neither deductible for the payor nor taxable for the recipient.

These changes do not apply to court orders or family agreements that were made before 1 May 1997, when the [[Child Support Guidelines]] came into effect. If those orders or agreements are varied at any point after 30 April 1997, however, the new rules will apply and the provisions for child support will become tax neutral.

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/E/pub/tp/it99r5-consolid/ Interpretation Bulletin IT-99R5] for the fine print.

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

==Child support and social assistance==

When a parent who is entitled to receive child support goes on welfare, the government agrees to provide support for that parent and his or her child. If there is someone else who might be obliged to support the child, such as another parent or guardian, the provincial government would prefer that this person pick up the tab rather than the taxpayer, and the government will usually come knocking on the other parent's door.

===Recipients of social assistance applying for child support===

If you are applying for social assistance or are receiving social assistance in British Columbia, you are required to sign a form that allows the government agency responsible for social assistance to take whatever steps are required to collect any child support payments you may be entitled to and keep the child support it collects. This is called ''assigning'' your child support rights. You may be allowed to keep a portion of the child support that the government collects in addition to your social assistance payments. Your case worker will tell you how much.

The collection of child support payments for people on social assistance is run by the [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program] (FMP). (This is a different organization than the Family Maintenance Enforcement Program, which enforces child support payments between parents.) FMP has the authority to pursue child support however it sees fit and can apply for orders or apply to vary child support orders on your behalf. You will be required to cooperate with FMP's actions, but they will be responsible for managing any court applications they begin.

===Applying for child support from a recipient of social assistance===

You can apply to receive child support from a parent who is receiving social assistance, but don't expect to get much for your trouble. The Guidelines does not require that a parent pay child support if the parent's annual income is less than $10,800 per year.

Even if you're not likely to get a lot of money out of the other parent, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to provide child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on his or her feet, than it is to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''[[Family Law Act]]'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.

==Children's right to claim child support==

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

===When there is an order between the parents===

A parent can only be subject to a single order to pay child support for a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if his or her parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less that he or she is required to pay, ''arrears'' build up. The arrears are the sum of the money that should have been paid according to the court order but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, and allows real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment debts.

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 he or she reaches the age of majority, 19 in British Columbia, and becomes an adult able to sue someone.

There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the provincial ''[http://canlii.ca/t/845q Limitation Act]'', the claim must be brought within 10 years of the child first being able to apply to enforce the judgment debt. In other words, the claim must be made before the child turns 29. The case that discusses this is ''[http://canlii.ca/t/1dkms Schmitke v. Schmitke]'', 1993 CanLII 642 (BC SC) a 1993 decision of the Supreme Court, in which the judge concluded that:

<blockquote>"...the right to bring an action for the enforcement of child maintenance is the right of the child. Since the child is 'a person under a disability' within the meaning of s. 7 of the ''Limitation Act'', the running of time is postponed so long as she is a minor."</blockquote>

===When there isn't an order between the parents===

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support. The explanation that follows is a bit complicated, so be patient.

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 s. 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; s.149(2)(b) says that 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.

Why would the court make this assumption? Think of it like this: the ''Divorce Act'', the ''Family Law Act'' and the [[Child Support Guidelines]] say that all of a child's parents and guardians are liable for supporting the child. In fact, [http://canlii.ca/t/7vf2#sec215 s. 215] of the ''Criminal Code'' makes it an offence to fail to provide a child with the "necessaries of life." The legislation on family law issues also assumes that the payment of support by one parent under the Guidelines is not going to be a complete payment of all of the child's needs. Section 1(b) of the Guidelines says that the purpose of the Guidelines is to ensure that children benefit "from the financial means of both spouses after separation." In other words, payment according to the Guidelines child support tables are not assumed to cover all of a child's costs, and the parent receiving the support payments is assumed to contribute towards the child's needs as well.

Third, a child seeking a child support order must qualify as a ''child'', as defined by s. 147 of the ''[[Family Law Act]]'', in order to claim child support. Although the court cannot grant a child support order if the child doesn't qualify as a child within the meaning of the act, 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. Either the child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of his or her parents and therefore still qualifies as a "child" entitled to receive support, or the child is a minor and applies for support through a ''litigation guardian'', formerly known as a guardian ''ad litem''. The first option would probably work, but the second is problematic as the court must approve the appointment of litigation guardians and it would likely refuse to do so if the child still lived with one of his or her parents.

Let's look at two examples to see how this all works.

Example #1

<blockquote>Let's say the parents are separated and the child is living with one of his or her parents.</blockquote>
<blockquote>In a case like this, the parent with whom the child is living has the responsibility of applying for support. As the child is under the age of 19, the child cannot start a court proceeding without the assistance of a litigation guardian. However, since the parent the child is living with is responsible for applying for child support and litigation guardians must be appointed by the court, the court would be likely to refuse to appoint a litigation guardian on the basis that the application is just a smoke screen for the parent's obligation to apply on behalf of the child.</blockquote>
<blockquote>If a child is older than 19 but still qualifies as a ''child'' under s. 146 of the ''Family Law Act'' (typically because the child is ill or disabled and cannot work or because the child is going to college or university), the child could certainly apply for child support. The child is over the age of majority and is able to start an action without a litigation guardian.</blockquote>
<blockquote>The adult child will, however, have to prove that he or she is in financial need. The court will not make a support order automatically. Having a job or being in a married or unmarried spousal relationship with someone will undermine the adult child's chances of success.</blockquote>

Example #2

<blockquote>Now let's say that the child is younger than 19 and is not living with his or her parents.</blockquote>
<blockquote>In a case like this, the parents would be responsible for paying support to the child but the child would have to start an action to claim child support, and would have to be represented by a litigation guardian. Even assuming that the court is prepared to appoint a litigation guardian, getting a child support order is not necessarily a slam dunk.</blockquote>
<blockquote>There are a few cases when minor children — children under the age of majority — have been found not to be entitled to receive child support. Typically, this happens when a child has chosen to move out, has found a job, and is living independently of his or her parents. A financially self-sufficient child who has left his or her parents' home may not be entitled to receive child support payments from them, especially if the child has refused to maintain a relationship with his or her parents.</blockquote>
<blockquote>Making things worse, under s. 147(1) of the ''Family Law Act'', children who are spouses or have voluntarily withdrawn from their parents' or guardians' charge may not be eligible for child support.</blockquote>

===Summary===

That was all a bit complicated. Here's what it boils down to:

*Children will not be able to apply for a child support order when there's an existing child support order.
*If arrears have accrued under an existing child support order, the child can apply to collect those arrears as a judgment debt under the ''Court Order Enforcement Act'', but only after the child has turned 19. The claim must be brought within 10 years of the child becoming able to make the claim.
*Children can only claim new child support orders under the ''Family Law Act''. They cannot apply under the ''Divorce Act''.
*Children who live at home with both parents cannot apply for child support.
*A child who brings a claim for child support must qualify as a ''child'' within the meaning of s. 146 of the ''Family Law Act''.
*Children who have left home and live with neither parent will have to establish financial need before the court will make a child support order. The court will not make the order automatically, and may not make the order at all if it decides that the child left home voluntarily.
*Adult children will also have to show financial need before the court will make a support order.

If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84h6 Court Order Interest Act]''
* ''[http://canlii.ca/t/845q Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Department of Justice: List of reciprocals offices by province]
* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.cra-arc.gc.ca/E/pub/tp/it99r5-consolid/ Canada Revenue Agency's Interpretation Bulletin IT-99R5]
* [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program]
* [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support]
* [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society Family Law Website: Child support]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

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[[Category:JP Boyd on Family Law]]

Child Support

2014-10-09T00:16:48Z

Eugene Raponi: /* Qualifying for child support */

{{JPBOFL Start Chapter
|Related = [[Child Support Guidelines|The Guidelines]]{{·}}[[Exceptions to the Child Support Guidelines|Exceptions to the Guidelines]]
{{·}}[[Making Changes to Child Support|Making Changes]]{{·}}[[Child Support Arrears]]
}}
{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Eugene Raponi|Eugene Raponi, QC]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]], which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

This section discusses the basics of child support, and child support orders under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at how to get a child support order inside and outside of British Columbia. It also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support.

Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also discuss [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].

==Introduction==

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing. 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.

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 as a result of the child's needs, and the payment of child support consequently helps 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. Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and almost unrelated to parenting time, contact, or access.

Child support is payable on the principle that both parents have a duty to financially contribute to their child's upbringing. The simple fact of biological parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.

An order for child support can be made under s. 15.1 of the federal ''[[Divorce Act]]'' or s. 149 of the provincial ''[[Family Law Act]]'', or a couple can agree on child support in a separation agreement. Either way, the amount of support awarded must, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contains a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described later in this chapter. The tables were most recently updated on 31 December 2011. For most people, the changes resulted in an increase in the amount of child support payable.

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take precedence.

==The ''Divorce Act''==

The ''Divorce Act'' only applies to people who are or were married to each other, including a parent and a stepparent who are married to each other. A court can only make an order for child support under the ''Divorce Act'' if it has or had the jurisdiction to make an order for the spouses' divorce: the spouses must be or have been legally married, and the spouse making the application must have lived in the province where the application is made for at least one year. Applications under the ''Divorce Act'' can only be heard by the Supreme Court, not the Provincial Court.

Child support is considered so important that a court may not even grant the parties a divorce unless the judge is satisfied that adequate financial provisions are made for the children. You can find more information on [[Divorce#Child support|child support in the context of divorce orders]] in the chapter [[Separation & Divorce]], in the section on [[Divorce#Child support|Divorce: 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" in order to be eligible for support. There are a couple of important definitions in s. 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>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</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, s. 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><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>

Taken together these definitions mean that:

#child support can be owing from an adoptive parent, as well as a natural parent,
#child support can be owing from stepparents (spouses who "stand in the place of a parent"),
#child support is payable until a child reaches the age of majority in the province where the child lives, and
#child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care.

On this last point, the ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as he or she cannot "withdraw from the charge" of his or her parents. The two main reasons why a child might not be able to withdraw are because the child is going to college or university, or because the child has a serious, chronic illness that prevents him or her from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies him or her as a "child of the marriage" include the following:

#the age of the adult child,
#whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
#the child's academic performance and dedication to his or her studies,
#the spouses' financial situation, and
#any plans the spouses may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program.

As far as "age of majority" is concerned, keep in mind that it is the provinces that have the authority to set the age of majority, not the federal government. In British Columbia, the age of majority is 19. In other provinces the age of majority is 18.

===Statutory provisions===

The primary sections of the ''[[Divorce Act]]'' dealing with child support are these:

*s. 2: definitions
*s. 4: jurisdiction to make child support orders
*s. 5: jurisdiction to change orders
*s. 15.1: child support
*s. 15.3: child support has priority over spousal support
*s. 17: variation proceedings

==The ''Family Law Act''==

A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses or in another unmarried relationship, or if they were in no particular relationship with each other at all. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.

Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.

===Qualifying for child support===

Definitions play an important role in determining eligibility and responsibility for child support under the ''[[Family Law Act]]'', just as they do under the ''[[Divorce Act]]''. Section 147 of the ''[[Family Law Act]]'' says that each parent and guardian of a child is responsible for the support of that child, and s. 146 defines ''child'', ''parent'' and ''guardian'' as follows:

<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;</tt></blockquote>
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>

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

<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, s. 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><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><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>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated.

As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:

*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other.
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between the parent and child may be taken into consideration when determining child support obligations and amounts.
*Child support can be payable by guardians and stepparents.
*The definition of "stepparent" includes anyone who has been the spouse of a parent and contributed to the support of his or her child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
*Child support can be payable by more than one parent, guardian, and stepparent at the same time.
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of his or her parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondary education.

On this last point, the factors a court will consider in determining whether a child's academic career continues to qualify the child for support include the following:

*the age of the adult child,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
*the child's academic performance and dedication to his or her studies,
*the financial situations of the child's parents, guardians and stepparents, and
*any plans the parties may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parties have a very high income and had always expected that the child would take an advanced degree, child support can be payable for more than one degree program, but this is the exception rather than the rule.

===Stepparents and child support===

The ''[[Family Law Act]]'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, a case decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, 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:

#the marriage was short,
#the stepparent's relationship with the child broke down shortly into the marriage,
#the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
#the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,
#the child's biological parent was paying support, and
#the parent had extended health and dental coverage for the child through the parent's employment.

The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:

<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, 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.

===Securing a child support obligation===

Under s. 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,
#require a payor with life insurance to maintain that policy and specify that a spouse or a child will be the beneficiary of the policy, or
#order that child support continue to be paid after the payor's death and be paid from his or her estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under s. 171(1), the court must consider:

#whether the recipient's need for support will survive the payor's death,
#whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and,
#whether any other means exist to meet the recipient's needs.

===Child support when the payor dies===

When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) that the payor's support obligation will continue and be paid from his or her 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.

===Statutory provisions===

The primary sections of the ''[[Family Law Act]]'' dealing with child support are these:

*s. 1: definitions
*s. 146: more definitions
*s. 147: duty to pay child support
*s. 148: agreements about child support
*s. 149: orders about child support
*s. 150: determining how much child support should be paid
*s. 152: varying orders about child support
*s. 170: securing a child support obligation
*s. 173: child support has priority over spousal support

==Getting a child support order==

There are five things the court must consider before a child support order can be made:

*Does the person asking for the order have the right to claim child support?
*Is the child entitled to receive child support?
*Is the person against whom the order is sought obliged to pay child support?
*How long should the child receive receive support?
*How much support should the child receive?

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. Under the ''[[Divorce Act]]'', the applicant must be a spouse who has lived in the province in which they 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.

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 his or her parents or guardians.

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.

If the first three conditions have been met, the court must then figure out how much the payor should pay. This is pretty easy for parents, but can be more difficult for guardians who are not parents and for stepparents. The court must first make a finding as to the payor's annual income, usually with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]].

Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements limit themselves by providing that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a termination date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier.

===Getting an order inside British Columbia===

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. Whichever court the parent or guardian wants to proceed in, he or she must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].

===Getting an order outside British Columbia===

A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:

#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',
#start a court proceeding in the place where the other parent lives, or
#start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and try to enforce that order in the place where the other parent lives.

The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out a bunch of paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Reciprocals Office] where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be the ''Family Law Act'' or the ''Divorce Act''.

Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the place 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]]''.

The countries that will cooperate with a proceeding under the ''[[Interjurisdictional Support Orders Act]]'' are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom and Northern Ireland, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] on [[CanLII]] or the [http://www.bclaws.ca/default.html BC Laws] website, for the current list.

The British Columbia Reciprocals Office, along with all of the forms required by the ''Interjurisdictional Support Orders Act'', can be found at [http://www.isoforms.bc.ca www.isoforms.bc.ca].

==Income tax considerations==

It used to be the case that the person paying child support could claim an income tax deduction for his or her support payments, while the recipient had to claim it as taxable income. On 25 April 1997, the federal ''[http://canlii.ca/t/7vb7 Income Tax Act]'' was amended to do away with this rule, and now child support payments are neither deductible for the payor nor taxable for the recipient.

These changes do not apply to court orders or family agreements that were made before 1 May 1997, when the [[Child Support Guidelines]] came into effect. If those orders or agreements are varied at any point after 30 April 1997, however, the new rules will apply and the provisions for child support will become tax neutral.

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/E/pub/tp/it99r5-consolid/ Interpretation Bulletin IT-99R5] for the fine print.

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

==Child support and social assistance==

When a parent who is entitled to receive child support goes on welfare, the government agrees to provide support for that parent and his or her child. If there is someone else who might be obliged to support the child, such as another parent or guardian, the provincial government would prefer that this person pick up the tab rather than the taxpayer, and the government will usually come knocking on the other parent's door.

===Recipients of social assistance applying for child support===

If you are applying for social assistance or are receiving social assistance in British Columbia, you are required to sign a form that allows the government agency responsible for social assistance to take whatever steps are required to collect any child support payments you may be entitled to and keep the child support it collects. This is called ''assigning'' your child support rights. You may be allowed to keep a portion of the child support that the government collects in addition to your social assistance payments. Your case worker will tell you how much.

The collection of child support payments for people on social assistance is run by the [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program] (FMP). (This is a different organization than the Family Maintenance Enforcement Program, which enforces child support payments between parents.) FMP has the authority to pursue child support however it sees fit and can apply for orders or apply to vary child support orders on your behalf. You will be required to cooperate with FMP's actions, but they will be responsible for managing any court applications they begin.

===Applying for child support from a recipient of social assistance===

You can apply to receive child support from a parent who is receiving social assistance, but don't expect to get much for your trouble. The Guidelines does not require that a parent pay child support if the parent's annual income is less than $10,800 per year.

Even if you're not likely to get a lot of money out of the other parent, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to provide child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on his or her feet, than it is to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''[[Family Law Act]]'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.

==Children's right to claim child support==

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

===When there is an order between the parents===

A parent can only be subject to a single order to pay child support for a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if his or her parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less that he or she is required to pay, ''arrears'' build up. The arrears are the sum of the money that should have been paid according to the court order but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, and allows real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment debts.

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 he or she reaches the age of majority, 19 in British Columbia, and becomes an adult able to sue someone.

There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the provincial ''[http://canlii.ca/t/845q Limitation Act]'', the claim must be brought within 10 years of the child first being able to apply to enforce the judgment debt. In other words, the claim must be made before the child turns 29. The case that discusses this is ''[http://canlii.ca/t/1dkms Schmitke v. Schmitke]'', 1993 CanLII 642 (BC SC) a 1993 decision of the Supreme Court, in which the judge concluded that:

<blockquote>"...the right to bring an action for the enforcement of child maintenance is the right of the child. Since the child is 'a person under a disability' within the meaning of s. 7 of the ''Limitation Act'', the running of time is postponed so long as she is a minor."</blockquote>

===When there isn't an order between the parents===

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support. The explanation that follows is a bit complicated, so be patient.

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 s. 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; s.149(2)(b) says that 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.

Why would the court make this assumption? Think of it like this: the ''Divorce Act'', the ''Family Law Act'' and the [[Child Support Guidelines]] say that all of a child's parents and guardians are liable for supporting the child. In fact, [http://canlii.ca/t/7vf2#sec215 s. 215] of the ''Criminal Code'' makes it an offence to fail to provide a child with the "necessaries of life." The legislation on family law issues also assumes that the payment of support by one parent under the Guidelines is not going to be a complete payment of all of the child's needs. Section 1(b) of the Guidelines says that the purpose of the Guidelines is to ensure that children benefit "from the financial means of both spouses after separation." In other words, payment according to the Guidelines child support tables are not assumed to cover all of a child's costs, and the parent receiving the support payments is assumed to contribute towards the child's needs as well.

Third, a child seeking a child support order must qualify as a ''child'', as defined by s. 147 of the ''[[Family Law Act]]'', in order to claim child support. Although the court cannot grant a child support order if the child doesn't qualify as a child within the meaning of the act, 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. Either the child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of his or her parents and therefore still qualifies as a "child" entitled to receive support, or the child is a minor and applies for support through a ''litigation guardian'', formerly known as a guardian ''ad litem''. The first option would probably work, but the second is problematic as the court must approve the appointment of litigation guardians and it would likely refuse to do so if the child still lived with one of his or her parents.

Let's look at two examples to see how this all works.

Example #1

<blockquote>Let's say the parents are separated and the child is living with one of his or her parents.</blockquote>
<blockquote>In a case like this, the parent with whom the child is living has the responsibility of applying for support. As the child is under the age of 19, the child cannot start a court proceeding without the assistance of a litigation guardian. However, since the parent the child is living with is responsible for applying for child support and litigation guardians must be appointed by the court, the court would be likely to refuse to appoint a litigation guardian on the basis that the application is just a smoke screen for the parent's obligation to apply on behalf of the child.</blockquote>
<blockquote>If a child is older than 19 but still qualifies as a ''child'' under s. 146 of the ''Family Law Act'' (typically because the child is ill or disabled and cannot work or because the child is going to college or university), the child could certainly apply for child support. The child is over the age of majority and is able to start an action without a litigation guardian.</blockquote>
<blockquote>The adult child will, however, have to prove that he or she is in financial need. The court will not make a support order automatically. Having a job or being in a married or unmarried spousal relationship with someone will undermine the adult child's chances of success.</blockquote>

Example #2

<blockquote>Now let's say that the child is younger than 19 and is not living with his or her parents.</blockquote>
<blockquote>In a case like this, the parents would be responsible for paying support to the child but the child would have to start an action to claim child support, and would have to be represented by a litigation guardian. Even assuming that the court is prepared to appoint a litigation guardian, getting a child support order is not necessarily a slam dunk.</blockquote>
<blockquote>There are a few cases when minor children — children under the age of majority — have been found not to be entitled to receive child support. Typically, this happens when a child has chosen to move out, has found a job, and is living independently of his or her parents. A financially self-sufficient child who has left his or her parents' home may not be entitled to receive child support payments from them, especially if the child has refused to maintain a relationship with his or her parents.</blockquote>
<blockquote>Making things worse, under s. 147(1) of the ''Family Law Act'', children who are spouses or have voluntarily withdrawn from their parents' or guardians' charge may not be eligible for child support.</blockquote>

===Summary===

That was all a bit complicated. Here's what it boils down to:

*Children will not be able to apply for a child support order when there's an existing child support order.
*If arrears have accrued under an existing child support order, the child can apply to collect those arrears as a judgment debt under the ''Court Order Enforcement Act'', but only after the child has turned 19. The claim must be brought within 10 years of the child becoming able to make the claim.
*Children can only claim new child support orders under the ''Family Law Act''. They cannot apply under the ''Divorce Act''.
*Children who live at home with both parents cannot apply for child support.
*A child who brings a claim for child support must qualify as a ''child'' within the meaning of s. 146 of the ''Family Law Act''.
*Children who have left home and live with neither parent will have to establish financial need before the court will make a child support order. The court will not make the order automatically, and may not make the order at all if it decides that the child left home voluntarily.
*Adult children will also have to show financial need before the court will make a support order.

If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84h6 Court Order Interest Act]''
* ''[http://canlii.ca/t/845q Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Department of Justice: List of reciprocals offices by province]
* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.cra-arc.gc.ca/E/pub/tp/it99r5-consolid/ Canada Revenue Agency's Interpretation Bulletin IT-99R5]
* [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program]
* [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support]
* [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society Family Law Website: Child support]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

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[[Category:JP Boyd on Family Law]]

Child Support

2014-10-09T00:15:55Z

Eugene Raponi: /* Qualifying for child support */

{{JPBOFL Start Chapter
|Related = [[Child Support Guidelines|The Guidelines]]{{·}}[[Exceptions to the Child Support Guidelines|Exceptions to the Guidelines]]
{{·}}[[Making Changes to Child Support|Making Changes]]{{·}}[[Child Support Arrears]]
}}
{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Eugene Raponi|Eugene Raponi, QC]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]], which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

This section discusses the basics of child support, and child support orders under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at how to get a child support order inside and outside of British Columbia. It also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support.

Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also discuss [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].

==Introduction==

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing. 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.

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 as a result of the child's needs, and the payment of child support consequently helps 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. Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and almost unrelated to parenting time, contact, or access.

Child support is payable on the principle that both parents have a duty to financially contribute to their child's upbringing. The simple fact of biological parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.

An order for child support can be made under s. 15.1 of the federal ''[[Divorce Act]]'' or s. 149 of the provincial ''[[Family Law Act]]'', or a couple can agree on child support in a separation agreement. Either way, the amount of support awarded must, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contains a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described later in this chapter. The tables were most recently updated on 31 December 2011. For most people, the changes resulted in an increase in the amount of child support payable.

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take precedence.

==The ''Divorce Act''==

The ''Divorce Act'' only applies to people who are or were married to each other, including a parent and a stepparent who are married to each other. A court can only make an order for child support under the ''Divorce Act'' if it has or had the jurisdiction to make an order for the spouses' divorce: the spouses must be or have been legally married, and the spouse making the application must have lived in the province where the application is made for at least one year. Applications under the ''Divorce Act'' can only be heard by the Supreme Court, not the Provincial Court.

Child support is considered so important that a court may not even grant the parties a divorce unless the judge is satisfied that adequate financial provisions are made for the children. You can find more information on [[Divorce#Child support|child support in the context of divorce orders]] in the chapter [[Separation & Divorce]], in the section on [[Divorce#Child support|Divorce: 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" in order to be eligible for support. There are a couple of important definitions in s. 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>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</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, s. 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><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>

Taken together these definitions mean that:

#child support can be owing from an adoptive parent, as well as a natural parent,
#child support can be owing from stepparents (spouses who "stand in the place of a parent"),
#child support is payable until a child reaches the age of majority in the province where the child lives, and
#child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care.

On this last point, the ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as he or she cannot "withdraw from the charge" of his or her parents. The two main reasons why a child might not be able to withdraw are because the child is going to college or university, or because the child has a serious, chronic illness that prevents him or her from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies him or her as a "child of the marriage" include the following:

#the age of the adult child,
#whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
#the child's academic performance and dedication to his or her studies,
#the spouses' financial situation, and
#any plans the spouses may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program.

As far as "age of majority" is concerned, keep in mind that it is the provinces that have the authority to set the age of majority, not the federal government. In British Columbia, the age of majority is 19. In other provinces the age of majority is 18.

===Statutory provisions===

The primary sections of the ''[[Divorce Act]]'' dealing with child support are these:

*s. 2: definitions
*s. 4: jurisdiction to make child support orders
*s. 5: jurisdiction to change orders
*s. 15.1: child support
*s. 15.3: child support has priority over spousal support
*s. 17: variation proceedings

==The ''Family Law Act''==

A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses or in another unmarried relationship, or if they were in no particular relationship with each other at all. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.

Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.

===Qualifying for child support===

Definitions play an important role in determining eligibility and responsibility for child support under the ''[[Family Law Act]]'', just as they do under the ''[[Divorce Act]]''. Section 147 of the ''[[Family Law Act]]'' says that each parent and guardian of a child is responsible for the support of that child, and s. 146 defines ''child'', ''parent'' and ''guardian'' as follows:

<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;</tt></blockquote>
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>

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

<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, s. 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><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><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>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated.

As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:

*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other.
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between the parent and child may be taken into account when determining child support obligations and amounts.
*Child support can be payable by guardians and stepparents.
*The definition of "stepparent" includes anyone who has been the spouse of a parent and contributed to the support of his or her child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
*Child support can be payable by more than one parent, guardian, and stepparent at the same time.
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of his or her parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondary education.

On this last point, the factors a court will consider in determining whether a child's academic career continues to qualify the child for support include the following:

*the age of the adult child,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
*the child's academic performance and dedication to his or her studies,
*the financial situations of the child's parents, guardians and stepparents, and
*any plans the parties may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parties have a very high income and had always expected that the child would take an advanced degree, child support can be payable for more than one degree program, but this is the exception rather than the rule.

===Stepparents and child support===

The ''[[Family Law Act]]'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, a case decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, 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:

#the marriage was short,
#the stepparent's relationship with the child broke down shortly into the marriage,
#the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
#the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,
#the child's biological parent was paying support, and
#the parent had extended health and dental coverage for the child through the parent's employment.

The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:

<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, 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.

===Securing a child support obligation===

Under s. 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,
#require a payor with life insurance to maintain that policy and specify that a spouse or a child will be the beneficiary of the policy, or
#order that child support continue to be paid after the payor's death and be paid from his or her estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under s. 171(1), the court must consider:

#whether the recipient's need for support will survive the payor's death,
#whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and,
#whether any other means exist to meet the recipient's needs.

===Child support when the payor dies===

When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) that the payor's support obligation will continue and be paid from his or her 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.

===Statutory provisions===

The primary sections of the ''[[Family Law Act]]'' dealing with child support are these:

*s. 1: definitions
*s. 146: more definitions
*s. 147: duty to pay child support
*s. 148: agreements about child support
*s. 149: orders about child support
*s. 150: determining how much child support should be paid
*s. 152: varying orders about child support
*s. 170: securing a child support obligation
*s. 173: child support has priority over spousal support

==Getting a child support order==

There are five things the court must consider before a child support order can be made:

*Does the person asking for the order have the right to claim child support?
*Is the child entitled to receive child support?
*Is the person against whom the order is sought obliged to pay child support?
*How long should the child receive receive support?
*How much support should the child receive?

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. Under the ''[[Divorce Act]]'', the applicant must be a spouse who has lived in the province in which they 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.

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 his or her parents or guardians.

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.

If the first three conditions have been met, the court must then figure out how much the payor should pay. This is pretty easy for parents, but can be more difficult for guardians who are not parents and for stepparents. The court must first make a finding as to the payor's annual income, usually with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]].

Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements limit themselves by providing that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a termination date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier.

===Getting an order inside British Columbia===

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. Whichever court the parent or guardian wants to proceed in, he or she must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].

===Getting an order outside British Columbia===

A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:

#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',
#start a court proceeding in the place where the other parent lives, or
#start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and try to enforce that order in the place where the other parent lives.

The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out a bunch of paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Reciprocals Office] where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be the ''Family Law Act'' or the ''Divorce Act''.

Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the place 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]]''.

The countries that will cooperate with a proceeding under the ''[[Interjurisdictional Support Orders Act]]'' are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom and Northern Ireland, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] on [[CanLII]] or the [http://www.bclaws.ca/default.html BC Laws] website, for the current list.

The British Columbia Reciprocals Office, along with all of the forms required by the ''Interjurisdictional Support Orders Act'', can be found at [http://www.isoforms.bc.ca www.isoforms.bc.ca].

==Income tax considerations==

It used to be the case that the person paying child support could claim an income tax deduction for his or her support payments, while the recipient had to claim it as taxable income. On 25 April 1997, the federal ''[http://canlii.ca/t/7vb7 Income Tax Act]'' was amended to do away with this rule, and now child support payments are neither deductible for the payor nor taxable for the recipient.

These changes do not apply to court orders or family agreements that were made before 1 May 1997, when the [[Child Support Guidelines]] came into effect. If those orders or agreements are varied at any point after 30 April 1997, however, the new rules will apply and the provisions for child support will become tax neutral.

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/E/pub/tp/it99r5-consolid/ Interpretation Bulletin IT-99R5] for the fine print.

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

==Child support and social assistance==

When a parent who is entitled to receive child support goes on welfare, the government agrees to provide support for that parent and his or her child. If there is someone else who might be obliged to support the child, such as another parent or guardian, the provincial government would prefer that this person pick up the tab rather than the taxpayer, and the government will usually come knocking on the other parent's door.

===Recipients of social assistance applying for child support===

If you are applying for social assistance or are receiving social assistance in British Columbia, you are required to sign a form that allows the government agency responsible for social assistance to take whatever steps are required to collect any child support payments you may be entitled to and keep the child support it collects. This is called ''assigning'' your child support rights. You may be allowed to keep a portion of the child support that the government collects in addition to your social assistance payments. Your case worker will tell you how much.

The collection of child support payments for people on social assistance is run by the [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program] (FMP). (This is a different organization than the Family Maintenance Enforcement Program, which enforces child support payments between parents.) FMP has the authority to pursue child support however it sees fit and can apply for orders or apply to vary child support orders on your behalf. You will be required to cooperate with FMP's actions, but they will be responsible for managing any court applications they begin.

===Applying for child support from a recipient of social assistance===

You can apply to receive child support from a parent who is receiving social assistance, but don't expect to get much for your trouble. The Guidelines does not require that a parent pay child support if the parent's annual income is less than $10,800 per year.

Even if you're not likely to get a lot of money out of the other parent, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to provide child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on his or her feet, than it is to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''[[Family Law Act]]'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.

==Children's right to claim child support==

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

===When there is an order between the parents===

A parent can only be subject to a single order to pay child support for a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if his or her parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less that he or she is required to pay, ''arrears'' build up. The arrears are the sum of the money that should have been paid according to the court order but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, and allows real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment debts.

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 he or she reaches the age of majority, 19 in British Columbia, and becomes an adult able to sue someone.

There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the provincial ''[http://canlii.ca/t/845q Limitation Act]'', the claim must be brought within 10 years of the child first being able to apply to enforce the judgment debt. In other words, the claim must be made before the child turns 29. The case that discusses this is ''[http://canlii.ca/t/1dkms Schmitke v. Schmitke]'', 1993 CanLII 642 (BC SC) a 1993 decision of the Supreme Court, in which the judge concluded that:

<blockquote>"...the right to bring an action for the enforcement of child maintenance is the right of the child. Since the child is 'a person under a disability' within the meaning of s. 7 of the ''Limitation Act'', the running of time is postponed so long as she is a minor."</blockquote>

===When there isn't an order between the parents===

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support. The explanation that follows is a bit complicated, so be patient.

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 s. 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; s.149(2)(b) says that 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.

Why would the court make this assumption? Think of it like this: the ''Divorce Act'', the ''Family Law Act'' and the [[Child Support Guidelines]] say that all of a child's parents and guardians are liable for supporting the child. In fact, [http://canlii.ca/t/7vf2#sec215 s. 215] of the ''Criminal Code'' makes it an offence to fail to provide a child with the "necessaries of life." The legislation on family law issues also assumes that the payment of support by one parent under the Guidelines is not going to be a complete payment of all of the child's needs. Section 1(b) of the Guidelines says that the purpose of the Guidelines is to ensure that children benefit "from the financial means of both spouses after separation." In other words, payment according to the Guidelines child support tables are not assumed to cover all of a child's costs, and the parent receiving the support payments is assumed to contribute towards the child's needs as well.

Third, a child seeking a child support order must qualify as a ''child'', as defined by s. 147 of the ''[[Family Law Act]]'', in order to claim child support. Although the court cannot grant a child support order if the child doesn't qualify as a child within the meaning of the act, 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. Either the child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of his or her parents and therefore still qualifies as a "child" entitled to receive support, or the child is a minor and applies for support through a ''litigation guardian'', formerly known as a guardian ''ad litem''. The first option would probably work, but the second is problematic as the court must approve the appointment of litigation guardians and it would likely refuse to do so if the child still lived with one of his or her parents.

Let's look at two examples to see how this all works.

Example #1

<blockquote>Let's say the parents are separated and the child is living with one of his or her parents.</blockquote>
<blockquote>In a case like this, the parent with whom the child is living has the responsibility of applying for support. As the child is under the age of 19, the child cannot start a court proceeding without the assistance of a litigation guardian. However, since the parent the child is living with is responsible for applying for child support and litigation guardians must be appointed by the court, the court would be likely to refuse to appoint a litigation guardian on the basis that the application is just a smoke screen for the parent's obligation to apply on behalf of the child.</blockquote>
<blockquote>If a child is older than 19 but still qualifies as a ''child'' under s. 146 of the ''Family Law Act'' (typically because the child is ill or disabled and cannot work or because the child is going to college or university), the child could certainly apply for child support. The child is over the age of majority and is able to start an action without a litigation guardian.</blockquote>
<blockquote>The adult child will, however, have to prove that he or she is in financial need. The court will not make a support order automatically. Having a job or being in a married or unmarried spousal relationship with someone will undermine the adult child's chances of success.</blockquote>

Example #2

<blockquote>Now let's say that the child is younger than 19 and is not living with his or her parents.</blockquote>
<blockquote>In a case like this, the parents would be responsible for paying support to the child but the child would have to start an action to claim child support, and would have to be represented by a litigation guardian. Even assuming that the court is prepared to appoint a litigation guardian, getting a child support order is not necessarily a slam dunk.</blockquote>
<blockquote>There are a few cases when minor children — children under the age of majority — have been found not to be entitled to receive child support. Typically, this happens when a child has chosen to move out, has found a job, and is living independently of his or her parents. A financially self-sufficient child who has left his or her parents' home may not be entitled to receive child support payments from them, especially if the child has refused to maintain a relationship with his or her parents.</blockquote>
<blockquote>Making things worse, under s. 147(1) of the ''Family Law Act'', children who are spouses or have voluntarily withdrawn from their parents' or guardians' charge may not be eligible for child support.</blockquote>

===Summary===

That was all a bit complicated. Here's what it boils down to:

*Children will not be able to apply for a child support order when there's an existing child support order.
*If arrears have accrued under an existing child support order, the child can apply to collect those arrears as a judgment debt under the ''Court Order Enforcement Act'', but only after the child has turned 19. The claim must be brought within 10 years of the child becoming able to make the claim.
*Children can only claim new child support orders under the ''Family Law Act''. They cannot apply under the ''Divorce Act''.
*Children who live at home with both parents cannot apply for child support.
*A child who brings a claim for child support must qualify as a ''child'' within the meaning of s. 146 of the ''Family Law Act''.
*Children who have left home and live with neither parent will have to establish financial need before the court will make a child support order. The court will not make the order automatically, and may not make the order at all if it decides that the child left home voluntarily.
*Adult children will also have to show financial need before the court will make a support order.

If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84h6 Court Order Interest Act]''
* ''[http://canlii.ca/t/845q Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Department of Justice: List of reciprocals offices by province]
* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.cra-arc.gc.ca/E/pub/tp/it99r5-consolid/ Canada Revenue Agency's Interpretation Bulletin IT-99R5]
* [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program]
* [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support]
* [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society Family Law Website: Child support]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

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[[Category:JP Boyd on Family Law]]

Child Support

2014-10-09T00:06:05Z

Eugene Raponi: /* The Divorce Act */

{{JPBOFL Start Chapter
|Related = [[Child Support Guidelines|The Guidelines]]{{·}}[[Exceptions to the Child Support Guidelines|Exceptions to the Guidelines]]
{{·}}[[Making Changes to Child Support|Making Changes]]{{·}}[[Child Support Arrears]]
}}
{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Eugene Raponi|Eugene Raponi, QC]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]], which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

This section discusses the basics of child support, and child support orders under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at how to get a child support order inside and outside of British Columbia. It also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support.

Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also discuss [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].

==Introduction==

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing. 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.

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 as a result of the child's needs, and the payment of child support consequently helps 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. Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and almost unrelated to parenting time, contact, or access.

Child support is payable on the principle that both parents have a duty to financially contribute to their child's upbringing. The simple fact of biological parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.

An order for child support can be made under s. 15.1 of the federal ''[[Divorce Act]]'' or s. 149 of the provincial ''[[Family Law Act]]'', or a couple can agree on child support in a separation agreement. Either way, the amount of support awarded must, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contains a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described later in this chapter. The tables were most recently updated on 31 December 2011. For most people, the changes resulted in an increase in the amount of child support payable.

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take precedence.

==The ''Divorce Act''==

The ''Divorce Act'' only applies to people who are or were married to each other, including a parent and a stepparent who are married to each other. A court can only make an order for child support under the ''Divorce Act'' if it has or had the jurisdiction to make an order for the spouses' divorce: the spouses must be or have been legally married, and the spouse making the application must have lived in the province where the application is made for at least one year. Applications under the ''Divorce Act'' can only be heard by the Supreme Court, not the Provincial Court.

Child support is considered so important that a court may not even grant the parties a divorce unless the judge is satisfied that adequate financial provisions are made for the children. You can find more information on [[Divorce#Child support|child support in the context of divorce orders]] in the chapter [[Separation & Divorce]], in the section on [[Divorce#Child support|Divorce: 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" in order to be eligible for support. There are a couple of important definitions in s. 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>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</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, s. 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><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>

Taken together these definitions mean that:

#child support can be owing from an adoptive parent, as well as a natural parent,
#child support can be owing from stepparents (spouses who "stand in the place of a parent"),
#child support is payable until a child reaches the age of majority in the province where the child lives, and
#child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care.

On this last point, the ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as he or she cannot "withdraw from the charge" of his or her parents. The two main reasons why a child might not be able to withdraw are because the child is going to college or university, or because the child has a serious, chronic illness that prevents him or her from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies him or her as a "child of the marriage" include the following:

#the age of the adult child,
#whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
#the child's academic performance and dedication to his or her studies,
#the spouses' financial situation, and
#any plans the spouses may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program.

As far as "age of majority" is concerned, keep in mind that it is the provinces that have the authority to set the age of majority, not the federal government. In British Columbia, the age of majority is 19. In other provinces the age of majority is 18.

===Statutory provisions===

The primary sections of the ''[[Divorce Act]]'' dealing with child support are these:

*s. 2: definitions
*s. 4: jurisdiction to make child support orders
*s. 5: jurisdiction to change orders
*s. 15.1: child support
*s. 15.3: child support has priority over spousal support
*s. 17: variation proceedings

==The ''Family Law Act''==

A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses or in another unmarried relationship, or if they were in no particular relationship with each other at all. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.

Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.

===Qualifying for child support===

Definitions play an important role in determining eligibility and responsibility for child support under the ''[[Family Law Act]]'', just as they do under the ''[[Divorce Act]]''. Section 147 of the ''[[Family Law Act]]'' says that each parent and guardian of a child is responsible for the support of that child, and s. 146 defines ''child'', ''parent'' and ''guardian'' as follows:

<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;</tt></blockquote>
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>

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

<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, s. 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><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><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>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated.

As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:

*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other.
*Child support can be payable by guardians and stepparents.
*The definition of "stepparent" includes anyone who has been the spouse of a parent and contributed to the support of his or her child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
*Child support can be payable by more than one parent, guardian, and stepparent at the same time.
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of his or her parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondary education.

On this last point, the factors a court will consider in determining whether a child's academic career continues to qualify the child for support include the following:

*the age of the adult child,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
*the child's academic performance and dedication to his or her studies,
*the financial situations of the child's parents, guardians and stepparents, and
*any plans the parties may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parties have a very high income and had always expected that the child would take an advanced degree, child support can be payable for more than one degree program, but this is the exception rather than the rule.

===Stepparents and child support===

The ''[[Family Law Act]]'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, a case decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, 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:

#the marriage was short,
#the stepparent's relationship with the child broke down shortly into the marriage,
#the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
#the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,
#the child's biological parent was paying support, and
#the parent had extended health and dental coverage for the child through the parent's employment.

The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:

<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, 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.

===Securing a child support obligation===

Under s. 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,
#require a payor with life insurance to maintain that policy and specify that a spouse or a child will be the beneficiary of the policy, or
#order that child support continue to be paid after the payor's death and be paid from his or her estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under s. 171(1), the court must consider:

#whether the recipient's need for support will survive the payor's death,
#whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and,
#whether any other means exist to meet the recipient's needs.

===Child support when the payor dies===

When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) that the payor's support obligation will continue and be paid from his or her 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.

===Statutory provisions===

The primary sections of the ''[[Family Law Act]]'' dealing with child support are these:

*s. 1: definitions
*s. 146: more definitions
*s. 147: duty to pay child support
*s. 148: agreements about child support
*s. 149: orders about child support
*s. 150: determining how much child support should be paid
*s. 152: varying orders about child support
*s. 170: securing a child support obligation
*s. 173: child support has priority over spousal support

==Getting a child support order==

There are five things the court must consider before a child support order can be made:

*Does the person asking for the order have the right to claim child support?
*Is the child entitled to receive child support?
*Is the person against whom the order is sought obliged to pay child support?
*How long should the child receive receive support?
*How much support should the child receive?

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. Under the ''[[Divorce Act]]'', the applicant must be a spouse who has lived in the province in which they 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.

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 his or her parents or guardians.

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.

If the first three conditions have been met, the court must then figure out how much the payor should pay. This is pretty easy for parents, but can be more difficult for guardians who are not parents and for stepparents. The court must first make a finding as to the payor's annual income, usually with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]].

Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements limit themselves by providing that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a termination date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier.

===Getting an order inside British Columbia===

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. Whichever court the parent or guardian wants to proceed in, he or she must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].

===Getting an order outside British Columbia===

A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:

#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',
#start a court proceeding in the place where the other parent lives, or
#start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and try to enforce that order in the place where the other parent lives.

The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out a bunch of paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Reciprocals Office] where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be the ''Family Law Act'' or the ''Divorce Act''.

Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the place 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]]''.

The countries that will cooperate with a proceeding under the ''[[Interjurisdictional Support Orders Act]]'' are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom and Northern Ireland, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] on [[CanLII]] or the [http://www.bclaws.ca/default.html BC Laws] website, for the current list.

The British Columbia Reciprocals Office, along with all of the forms required by the ''Interjurisdictional Support Orders Act'', can be found at [http://www.isoforms.bc.ca www.isoforms.bc.ca].

==Income tax considerations==

It used to be the case that the person paying child support could claim an income tax deduction for his or her support payments, while the recipient had to claim it as taxable income. On 25 April 1997, the federal ''[http://canlii.ca/t/7vb7 Income Tax Act]'' was amended to do away with this rule, and now child support payments are neither deductible for the payor nor taxable for the recipient.

These changes do not apply to court orders or family agreements that were made before 1 May 1997, when the [[Child Support Guidelines]] came into effect. If those orders or agreements are varied at any point after 30 April 1997, however, the new rules will apply and the provisions for child support will become tax neutral.

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/E/pub/tp/it99r5-consolid/ Interpretation Bulletin IT-99R5] for the fine print.

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

==Child support and social assistance==

When a parent who is entitled to receive child support goes on welfare, the government agrees to provide support for that parent and his or her child. If there is someone else who might be obliged to support the child, such as another parent or guardian, the provincial government would prefer that this person pick up the tab rather than the taxpayer, and the government will usually come knocking on the other parent's door.

===Recipients of social assistance applying for child support===

If you are applying for social assistance or are receiving social assistance in British Columbia, you are required to sign a form that allows the government agency responsible for social assistance to take whatever steps are required to collect any child support payments you may be entitled to and keep the child support it collects. This is called ''assigning'' your child support rights. You may be allowed to keep a portion of the child support that the government collects in addition to your social assistance payments. Your case worker will tell you how much.

The collection of child support payments for people on social assistance is run by the [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program] (FMP). (This is a different organization than the Family Maintenance Enforcement Program, which enforces child support payments between parents.) FMP has the authority to pursue child support however it sees fit and can apply for orders or apply to vary child support orders on your behalf. You will be required to cooperate with FMP's actions, but they will be responsible for managing any court applications they begin.

===Applying for child support from a recipient of social assistance===

You can apply to receive child support from a parent who is receiving social assistance, but don't expect to get much for your trouble. The Guidelines does not require that a parent pay child support if the parent's annual income is less than $10,800 per year.

Even if you're not likely to get a lot of money out of the other parent, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to provide child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on his or her feet, than it is to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''[[Family Law Act]]'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.

==Children's right to claim child support==

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

===When there is an order between the parents===

A parent can only be subject to a single order to pay child support for a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if his or her parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less that he or she is required to pay, ''arrears'' build up. The arrears are the sum of the money that should have been paid according to the court order but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, and allows real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment debts.

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 he or she reaches the age of majority, 19 in British Columbia, and becomes an adult able to sue someone.

There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the provincial ''[http://canlii.ca/t/845q Limitation Act]'', the claim must be brought within 10 years of the child first being able to apply to enforce the judgment debt. In other words, the claim must be made before the child turns 29. The case that discusses this is ''[http://canlii.ca/t/1dkms Schmitke v. Schmitke]'', 1993 CanLII 642 (BC SC) a 1993 decision of the Supreme Court, in which the judge concluded that:

<blockquote>"...the right to bring an action for the enforcement of child maintenance is the right of the child. Since the child is 'a person under a disability' within the meaning of s. 7 of the ''Limitation Act'', the running of time is postponed so long as she is a minor."</blockquote>

===When there isn't an order between the parents===

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support. The explanation that follows is a bit complicated, so be patient.

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 s. 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; s.149(2)(b) says that 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.

Why would the court make this assumption? Think of it like this: the ''Divorce Act'', the ''Family Law Act'' and the [[Child Support Guidelines]] say that all of a child's parents and guardians are liable for supporting the child. In fact, [http://canlii.ca/t/7vf2#sec215 s. 215] of the ''Criminal Code'' makes it an offence to fail to provide a child with the "necessaries of life." The legislation on family law issues also assumes that the payment of support by one parent under the Guidelines is not going to be a complete payment of all of the child's needs. Section 1(b) of the Guidelines says that the purpose of the Guidelines is to ensure that children benefit "from the financial means of both spouses after separation." In other words, payment according to the Guidelines child support tables are not assumed to cover all of a child's costs, and the parent receiving the support payments is assumed to contribute towards the child's needs as well.

Third, a child seeking a child support order must qualify as a ''child'', as defined by s. 147 of the ''[[Family Law Act]]'', in order to claim child support. Although the court cannot grant a child support order if the child doesn't qualify as a child within the meaning of the act, 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. Either the child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of his or her parents and therefore still qualifies as a "child" entitled to receive support, or the child is a minor and applies for support through a ''litigation guardian'', formerly known as a guardian ''ad litem''. The first option would probably work, but the second is problematic as the court must approve the appointment of litigation guardians and it would likely refuse to do so if the child still lived with one of his or her parents.

Let's look at two examples to see how this all works.

Example #1

<blockquote>Let's say the parents are separated and the child is living with one of his or her parents.</blockquote>
<blockquote>In a case like this, the parent with whom the child is living has the responsibility of applying for support. As the child is under the age of 19, the child cannot start a court proceeding without the assistance of a litigation guardian. However, since the parent the child is living with is responsible for applying for child support and litigation guardians must be appointed by the court, the court would be likely to refuse to appoint a litigation guardian on the basis that the application is just a smoke screen for the parent's obligation to apply on behalf of the child.</blockquote>
<blockquote>If a child is older than 19 but still qualifies as a ''child'' under s. 146 of the ''Family Law Act'' (typically because the child is ill or disabled and cannot work or because the child is going to college or university), the child could certainly apply for child support. The child is over the age of majority and is able to start an action without a litigation guardian.</blockquote>
<blockquote>The adult child will, however, have to prove that he or she is in financial need. The court will not make a support order automatically. Having a job or being in a married or unmarried spousal relationship with someone will undermine the adult child's chances of success.</blockquote>

Example #2

<blockquote>Now let's say that the child is younger than 19 and is not living with his or her parents.</blockquote>
<blockquote>In a case like this, the parents would be responsible for paying support to the child but the child would have to start an action to claim child support, and would have to be represented by a litigation guardian. Even assuming that the court is prepared to appoint a litigation guardian, getting a child support order is not necessarily a slam dunk.</blockquote>
<blockquote>There are a few cases when minor children — children under the age of majority — have been found not to be entitled to receive child support. Typically, this happens when a child has chosen to move out, has found a job, and is living independently of his or her parents. A financially self-sufficient child who has left his or her parents' home may not be entitled to receive child support payments from them, especially if the child has refused to maintain a relationship with his or her parents.</blockquote>
<blockquote>Making things worse, under s. 147(1) of the ''Family Law Act'', children who are spouses or have voluntarily withdrawn from their parents' or guardians' charge may not be eligible for child support.</blockquote>

===Summary===

That was all a bit complicated. Here's what it boils down to:

*Children will not be able to apply for a child support order when there's an existing child support order.
*If arrears have accrued under an existing child support order, the child can apply to collect those arrears as a judgment debt under the ''Court Order Enforcement Act'', but only after the child has turned 19. The claim must be brought within 10 years of the child becoming able to make the claim.
*Children can only claim new child support orders under the ''Family Law Act''. They cannot apply under the ''Divorce Act''.
*Children who live at home with both parents cannot apply for child support.
*A child who brings a claim for child support must qualify as a ''child'' within the meaning of s. 146 of the ''Family Law Act''.
*Children who have left home and live with neither parent will have to establish financial need before the court will make a child support order. The court will not make the order automatically, and may not make the order at all if it decides that the child left home voluntarily.
*Adult children will also have to show financial need before the court will make a support order.

If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84h6 Court Order Interest Act]''
* ''[http://canlii.ca/t/845q Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Department of Justice: List of reciprocals offices by province]
* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.cra-arc.gc.ca/E/pub/tp/it99r5-consolid/ Canada Revenue Agency's Interpretation Bulletin IT-99R5]
* [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program]
* [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support]
* [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society Family Law Website: Child support]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

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[[Category:JP Boyd on Family Law]]

Child Support

2014-10-09T00:05:47Z

Eugene Raponi: /* The Divorce Act */

{{JPBOFL Start Chapter
|Related = [[Child Support Guidelines|The Guidelines]]{{·}}[[Exceptions to the Child Support Guidelines|Exceptions to the Guidelines]]
{{·}}[[Making Changes to Child Support|Making Changes]]{{·}}[[Child Support Arrears]]
}}
{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Eugene Raponi|Eugene Raponi, QC]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]], which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

This section discusses the basics of child support, and child support orders under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at how to get a child support order inside and outside of British Columbia. It also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support.

Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also discuss [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].

==Introduction==

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing. 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.

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 as a result of the child's needs, and the payment of child support consequently helps 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. Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and almost unrelated to parenting time, contact, or access.

Child support is payable on the principle that both parents have a duty to financially contribute to their child's upbringing. The simple fact of biological parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.

An order for child support can be made under s. 15.1 of the federal ''[[Divorce Act]]'' or s. 149 of the provincial ''[[Family Law Act]]'', or a couple can agree on child support in a separation agreement. Either way, the amount of support awarded must, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contains a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described later in this chapter. The tables were most recently updated on 31 December 2011. For most people, the changes resulted in an increase in the amount of child support payable.

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take precedence.

==The ''Divorce Act''==

The ''Divorce Act'' only applies to people who are or were married to each other, including a parent and a stepparent who are married to each other. A court can only make an order for child support under the ''Divorce Act'' if it has or had the jurisdiction to make an order for the spouses' divorce: the spouses must be or have been legally married, and the spouse making the application must have lived in the province where the application is made for at least one year. Applications under the ''Divorce Act'' can only be heard by the Supreme Court, not the Provincial Court.

Child support is considered so important that a court may not even grant the parties a divorce unless the judge is satisfied that adequate financial provisions are made for the children. You can find more information on [[Divorce#Child support|child support in the context of divorce orders]] in the chapter [[Separation & Divorce]], in the section on [[Divorce#Child support|Divorce—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" in order to be eligible for support. There are a couple of important definitions in s. 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>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</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, s. 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><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>

Taken together these definitions mean that:

#child support can be owing from an adoptive parent, as well as a natural parent,
#child support can be owing from stepparents (spouses who "stand in the place of a parent"),
#child support is payable until a child reaches the age of majority in the province where the child lives, and
#child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care.

On this last point, the ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as he or she cannot "withdraw from the charge" of his or her parents. The two main reasons why a child might not be able to withdraw are because the child is going to college or university, or because the child has a serious, chronic illness that prevents him or her from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies him or her as a "child of the marriage" include the following:

#the age of the adult child,
#whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
#the child's academic performance and dedication to his or her studies,
#the spouses' financial situation, and
#any plans the spouses may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program.

As far as "age of majority" is concerned, keep in mind that it is the provinces that have the authority to set the age of majority, not the federal government. In British Columbia, the age of majority is 19. In other provinces the age of majority is 18.

===Statutory provisions===

The primary sections of the ''[[Divorce Act]]'' dealing with child support are these:

*s. 2: definitions
*s. 4: jurisdiction to make child support orders
*s. 5: jurisdiction to change orders
*s. 15.1: child support
*s. 15.3: child support has priority over spousal support
*s. 17: variation proceedings

==The ''Family Law Act''==

A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses or in another unmarried relationship, or if they were in no particular relationship with each other at all. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.

Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.

===Qualifying for child support===

Definitions play an important role in determining eligibility and responsibility for child support under the ''[[Family Law Act]]'', just as they do under the ''[[Divorce Act]]''. Section 147 of the ''[[Family Law Act]]'' says that each parent and guardian of a child is responsible for the support of that child, and s. 146 defines ''child'', ''parent'' and ''guardian'' as follows:

<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;</tt></blockquote>
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>

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

<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, s. 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><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><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>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated.

As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:

*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other.
*Child support can be payable by guardians and stepparents.
*The definition of "stepparent" includes anyone who has been the spouse of a parent and contributed to the support of his or her child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
*Child support can be payable by more than one parent, guardian, and stepparent at the same time.
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of his or her parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondary education.

On this last point, the factors a court will consider in determining whether a child's academic career continues to qualify the child for support include the following:

*the age of the adult child,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
*the child's academic performance and dedication to his or her studies,
*the financial situations of the child's parents, guardians and stepparents, and
*any plans the parties may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parties have a very high income and had always expected that the child would take an advanced degree, child support can be payable for more than one degree program, but this is the exception rather than the rule.

===Stepparents and child support===

The ''[[Family Law Act]]'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, a case decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, 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:

#the marriage was short,
#the stepparent's relationship with the child broke down shortly into the marriage,
#the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
#the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,
#the child's biological parent was paying support, and
#the parent had extended health and dental coverage for the child through the parent's employment.

The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:

<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, 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.

===Securing a child support obligation===

Under s. 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,
#require a payor with life insurance to maintain that policy and specify that a spouse or a child will be the beneficiary of the policy, or
#order that child support continue to be paid after the payor's death and be paid from his or her estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under s. 171(1), the court must consider:

#whether the recipient's need for support will survive the payor's death,
#whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and,
#whether any other means exist to meet the recipient's needs.

===Child support when the payor dies===

When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) that the payor's support obligation will continue and be paid from his or her 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.

===Statutory provisions===

The primary sections of the ''[[Family Law Act]]'' dealing with child support are these:

*s. 1: definitions
*s. 146: more definitions
*s. 147: duty to pay child support
*s. 148: agreements about child support
*s. 149: orders about child support
*s. 150: determining how much child support should be paid
*s. 152: varying orders about child support
*s. 170: securing a child support obligation
*s. 173: child support has priority over spousal support

==Getting a child support order==

There are five things the court must consider before a child support order can be made:

*Does the person asking for the order have the right to claim child support?
*Is the child entitled to receive child support?
*Is the person against whom the order is sought obliged to pay child support?
*How long should the child receive receive support?
*How much support should the child receive?

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. Under the ''[[Divorce Act]]'', the applicant must be a spouse who has lived in the province in which they 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.

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 his or her parents or guardians.

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.

If the first three conditions have been met, the court must then figure out how much the payor should pay. This is pretty easy for parents, but can be more difficult for guardians who are not parents and for stepparents. The court must first make a finding as to the payor's annual income, usually with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]].

Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements limit themselves by providing that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a termination date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier.

===Getting an order inside British Columbia===

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. Whichever court the parent or guardian wants to proceed in, he or she must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].

===Getting an order outside British Columbia===

A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:

#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',
#start a court proceeding in the place where the other parent lives, or
#start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and try to enforce that order in the place where the other parent lives.

The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out a bunch of paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Reciprocals Office] where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be the ''Family Law Act'' or the ''Divorce Act''.

Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the place 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]]''.

The countries that will cooperate with a proceeding under the ''[[Interjurisdictional Support Orders Act]]'' are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom and Northern Ireland, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] on [[CanLII]] or the [http://www.bclaws.ca/default.html BC Laws] website, for the current list.

The British Columbia Reciprocals Office, along with all of the forms required by the ''Interjurisdictional Support Orders Act'', can be found at [http://www.isoforms.bc.ca www.isoforms.bc.ca].

==Income tax considerations==

It used to be the case that the person paying child support could claim an income tax deduction for his or her support payments, while the recipient had to claim it as taxable income. On 25 April 1997, the federal ''[http://canlii.ca/t/7vb7 Income Tax Act]'' was amended to do away with this rule, and now child support payments are neither deductible for the payor nor taxable for the recipient.

These changes do not apply to court orders or family agreements that were made before 1 May 1997, when the [[Child Support Guidelines]] came into effect. If those orders or agreements are varied at any point after 30 April 1997, however, the new rules will apply and the provisions for child support will become tax neutral.

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/E/pub/tp/it99r5-consolid/ Interpretation Bulletin IT-99R5] for the fine print.

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

==Child support and social assistance==

When a parent who is entitled to receive child support goes on welfare, the government agrees to provide support for that parent and his or her child. If there is someone else who might be obliged to support the child, such as another parent or guardian, the provincial government would prefer that this person pick up the tab rather than the taxpayer, and the government will usually come knocking on the other parent's door.

===Recipients of social assistance applying for child support===

If you are applying for social assistance or are receiving social assistance in British Columbia, you are required to sign a form that allows the government agency responsible for social assistance to take whatever steps are required to collect any child support payments you may be entitled to and keep the child support it collects. This is called ''assigning'' your child support rights. You may be allowed to keep a portion of the child support that the government collects in addition to your social assistance payments. Your case worker will tell you how much.

The collection of child support payments for people on social assistance is run by the [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program] (FMP). (This is a different organization than the Family Maintenance Enforcement Program, which enforces child support payments between parents.) FMP has the authority to pursue child support however it sees fit and can apply for orders or apply to vary child support orders on your behalf. You will be required to cooperate with FMP's actions, but they will be responsible for managing any court applications they begin.

===Applying for child support from a recipient of social assistance===

You can apply to receive child support from a parent who is receiving social assistance, but don't expect to get much for your trouble. The Guidelines does not require that a parent pay child support if the parent's annual income is less than $10,800 per year.

Even if you're not likely to get a lot of money out of the other parent, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to provide child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on his or her feet, than it is to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''[[Family Law Act]]'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.

==Children's right to claim child support==

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

===When there is an order between the parents===

A parent can only be subject to a single order to pay child support for a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if his or her parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less that he or she is required to pay, ''arrears'' build up. The arrears are the sum of the money that should have been paid according to the court order but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, and allows real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment debts.

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 he or she reaches the age of majority, 19 in British Columbia, and becomes an adult able to sue someone.

There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the provincial ''[http://canlii.ca/t/845q Limitation Act]'', the claim must be brought within 10 years of the child first being able to apply to enforce the judgment debt. In other words, the claim must be made before the child turns 29. The case that discusses this is ''[http://canlii.ca/t/1dkms Schmitke v. Schmitke]'', 1993 CanLII 642 (BC SC) a 1993 decision of the Supreme Court, in which the judge concluded that:

<blockquote>"...the right to bring an action for the enforcement of child maintenance is the right of the child. Since the child is 'a person under a disability' within the meaning of s. 7 of the ''Limitation Act'', the running of time is postponed so long as she is a minor."</blockquote>

===When there isn't an order between the parents===

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support. The explanation that follows is a bit complicated, so be patient.

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 s. 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; s.149(2)(b) says that 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.

Why would the court make this assumption? Think of it like this: the ''Divorce Act'', the ''Family Law Act'' and the [[Child Support Guidelines]] say that all of a child's parents and guardians are liable for supporting the child. In fact, [http://canlii.ca/t/7vf2#sec215 s. 215] of the ''Criminal Code'' makes it an offence to fail to provide a child with the "necessaries of life." The legislation on family law issues also assumes that the payment of support by one parent under the Guidelines is not going to be a complete payment of all of the child's needs. Section 1(b) of the Guidelines says that the purpose of the Guidelines is to ensure that children benefit "from the financial means of both spouses after separation." In other words, payment according to the Guidelines child support tables are not assumed to cover all of a child's costs, and the parent receiving the support payments is assumed to contribute towards the child's needs as well.

Third, a child seeking a child support order must qualify as a ''child'', as defined by s. 147 of the ''[[Family Law Act]]'', in order to claim child support. Although the court cannot grant a child support order if the child doesn't qualify as a child within the meaning of the act, 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. Either the child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of his or her parents and therefore still qualifies as a "child" entitled to receive support, or the child is a minor and applies for support through a ''litigation guardian'', formerly known as a guardian ''ad litem''. The first option would probably work, but the second is problematic as the court must approve the appointment of litigation guardians and it would likely refuse to do so if the child still lived with one of his or her parents.

Let's look at two examples to see how this all works.

Example #1

<blockquote>Let's say the parents are separated and the child is living with one of his or her parents.</blockquote>
<blockquote>In a case like this, the parent with whom the child is living has the responsibility of applying for support. As the child is under the age of 19, the child cannot start a court proceeding without the assistance of a litigation guardian. However, since the parent the child is living with is responsible for applying for child support and litigation guardians must be appointed by the court, the court would be likely to refuse to appoint a litigation guardian on the basis that the application is just a smoke screen for the parent's obligation to apply on behalf of the child.</blockquote>
<blockquote>If a child is older than 19 but still qualifies as a ''child'' under s. 146 of the ''Family Law Act'' (typically because the child is ill or disabled and cannot work or because the child is going to college or university), the child could certainly apply for child support. The child is over the age of majority and is able to start an action without a litigation guardian.</blockquote>
<blockquote>The adult child will, however, have to prove that he or she is in financial need. The court will not make a support order automatically. Having a job or being in a married or unmarried spousal relationship with someone will undermine the adult child's chances of success.</blockquote>

Example #2

<blockquote>Now let's say that the child is younger than 19 and is not living with his or her parents.</blockquote>
<blockquote>In a case like this, the parents would be responsible for paying support to the child but the child would have to start an action to claim child support, and would have to be represented by a litigation guardian. Even assuming that the court is prepared to appoint a litigation guardian, getting a child support order is not necessarily a slam dunk.</blockquote>
<blockquote>There are a few cases when minor children — children under the age of majority — have been found not to be entitled to receive child support. Typically, this happens when a child has chosen to move out, has found a job, and is living independently of his or her parents. A financially self-sufficient child who has left his or her parents' home may not be entitled to receive child support payments from them, especially if the child has refused to maintain a relationship with his or her parents.</blockquote>
<blockquote>Making things worse, under s. 147(1) of the ''Family Law Act'', children who are spouses or have voluntarily withdrawn from their parents' or guardians' charge may not be eligible for child support.</blockquote>

===Summary===

That was all a bit complicated. Here's what it boils down to:

*Children will not be able to apply for a child support order when there's an existing child support order.
*If arrears have accrued under an existing child support order, the child can apply to collect those arrears as a judgment debt under the ''Court Order Enforcement Act'', but only after the child has turned 19. The claim must be brought within 10 years of the child becoming able to make the claim.
*Children can only claim new child support orders under the ''Family Law Act''. They cannot apply under the ''Divorce Act''.
*Children who live at home with both parents cannot apply for child support.
*A child who brings a claim for child support must qualify as a ''child'' within the meaning of s. 146 of the ''Family Law Act''.
*Children who have left home and live with neither parent will have to establish financial need before the court will make a child support order. The court will not make the order automatically, and may not make the order at all if it decides that the child left home voluntarily.
*Adult children will also have to show financial need before the court will make a support order.

If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84h6 Court Order Interest Act]''
* ''[http://canlii.ca/t/845q Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Department of Justice: List of reciprocals offices by province]
* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.cra-arc.gc.ca/E/pub/tp/it99r5-consolid/ Canada Revenue Agency's Interpretation Bulletin IT-99R5]
* [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program]
* [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support]
* [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society Family Law Website: Child support]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

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[[Category:JP Boyd on Family Law]]

Child Support

2014-10-09T00:04:02Z

Eugene Raponi: /* The Divorce Act */

{{JPBOFL Start Chapter
|Related = [[Child Support Guidelines|The Guidelines]]{{·}}[[Exceptions to the Child Support Guidelines|Exceptions to the Guidelines]]
{{·}}[[Making Changes to Child Support|Making Changes]]{{·}}[[Child Support Arrears]]
}}
{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Eugene Raponi|Eugene Raponi, QC]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]], which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

This section discusses the basics of child support, and child support orders under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at how to get a child support order inside and outside of British Columbia. It also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support.

Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also discuss [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].

==Introduction==

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing. 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.

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 as a result of the child's needs, and the payment of child support consequently helps 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. Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and almost unrelated to parenting time, contact, or access.

Child support is payable on the principle that both parents have a duty to financially contribute to their child's upbringing. The simple fact of biological parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.

An order for child support can be made under s. 15.1 of the federal ''[[Divorce Act]]'' or s. 149 of the provincial ''[[Family Law Act]]'', or a couple can agree on child support in a separation agreement. Either way, the amount of support awarded must, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contains a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described later in this chapter. The tables were most recently updated on 31 December 2011. For most people, the changes resulted in an increase in the amount of child support payable.

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take precedence.

==The ''Divorce Act''==

The ''Divorce Act'' only applies to people who are or were married to each other, including a parent and a stepparent who are married to each other. A court can only make an order for child support under the ''Divorce Act'' if it has or had the jurisdiction to make an order for the spouses' divorce: the spouses must be or have been legally married, and the spouse making the application must have lived in the province where the application is made for at least one year. Applications under the ''Divorce Act'' can only be heard by the Supreme Court, not the Provincial Court.

Child support is considered so important that a court may not even grant the parties a divorce unless the judge is satisfied that adequate financial provisions are made for the children. You can find more information on [[Divorce#Child support|child support in the context of divorce orders]] in the chapter [[Separation & Divorce]], in the section on [[Divorce#Child support|divorce]].

===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" in order to be eligible for support. There are a couple of important definitions in s. 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>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</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, s. 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><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>

Taken together these definitions mean that:

#child support can be owing from an adoptive parent, as well as a natural parent,
#child support can be owing from stepparents (spouses who "stand in the place of a parent"),
#child support is payable until a child reaches the age of majority in the province where the child lives, and
#child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care.

On this last point, the ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as he or she cannot "withdraw from the charge" of his or her parents. The two main reasons why a child might not be able to withdraw are because the child is going to college or university, or because the child has a serious, chronic illness that prevents him or her from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies him or her as a "child of the marriage" include the following:

#the age of the adult child,
#whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
#the child's academic performance and dedication to his or her studies,
#the spouses' financial situation, and
#any plans the spouses may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program.

As far as "age of majority" is concerned, keep in mind that it is the provinces that have the authority to set the age of majority, not the federal government. In British Columbia, the age of majority is 19. In other provinces the age of majority is 18.

===Statutory provisions===

The primary sections of the ''[[Divorce Act]]'' dealing with child support are these:

*s. 2: definitions
*s. 4: jurisdiction to make child support orders
*s. 5: jurisdiction to change orders
*s. 15.1: child support
*s. 15.3: child support has priority over spousal support
*s. 17: variation proceedings

==The ''Family Law Act''==

A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses or in another unmarried relationship, or if they were in no particular relationship with each other at all. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.

Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.

===Qualifying for child support===

Definitions play an important role in determining eligibility and responsibility for child support under the ''[[Family Law Act]]'', just as they do under the ''[[Divorce Act]]''. Section 147 of the ''[[Family Law Act]]'' says that each parent and guardian of a child is responsible for the support of that child, and s. 146 defines ''child'', ''parent'' and ''guardian'' as follows:

<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;</tt></blockquote>
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>

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

<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, s. 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><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><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>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated.

As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:

*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other.
*Child support can be payable by guardians and stepparents.
*The definition of "stepparent" includes anyone who has been the spouse of a parent and contributed to the support of his or her child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
*Child support can be payable by more than one parent, guardian, and stepparent at the same time.
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of his or her parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondary education.

On this last point, the factors a court will consider in determining whether a child's academic career continues to qualify the child for support include the following:

*the age of the adult child,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
*the child's academic performance and dedication to his or her studies,
*the financial situations of the child's parents, guardians and stepparents, and
*any plans the parties may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parties have a very high income and had always expected that the child would take an advanced degree, child support can be payable for more than one degree program, but this is the exception rather than the rule.

===Stepparents and child support===

The ''[[Family Law Act]]'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, a case decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, 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:

#the marriage was short,
#the stepparent's relationship with the child broke down shortly into the marriage,
#the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
#the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,
#the child's biological parent was paying support, and
#the parent had extended health and dental coverage for the child through the parent's employment.

The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:

<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, 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.

===Securing a child support obligation===

Under s. 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,
#require a payor with life insurance to maintain that policy and specify that a spouse or a child will be the beneficiary of the policy, or
#order that child support continue to be paid after the payor's death and be paid from his or her estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under s. 171(1), the court must consider:

#whether the recipient's need for support will survive the payor's death,
#whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and,
#whether any other means exist to meet the recipient's needs.

===Child support when the payor dies===

When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) that the payor's support obligation will continue and be paid from his or her 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.

===Statutory provisions===

The primary sections of the ''[[Family Law Act]]'' dealing with child support are these:

*s. 1: definitions
*s. 146: more definitions
*s. 147: duty to pay child support
*s. 148: agreements about child support
*s. 149: orders about child support
*s. 150: determining how much child support should be paid
*s. 152: varying orders about child support
*s. 170: securing a child support obligation
*s. 173: child support has priority over spousal support

==Getting a child support order==

There are five things the court must consider before a child support order can be made:

*Does the person asking for the order have the right to claim child support?
*Is the child entitled to receive child support?
*Is the person against whom the order is sought obliged to pay child support?
*How long should the child receive receive support?
*How much support should the child receive?

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. Under the ''[[Divorce Act]]'', the applicant must be a spouse who has lived in the province in which they 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.

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 his or her parents or guardians.

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.

If the first three conditions have been met, the court must then figure out how much the payor should pay. This is pretty easy for parents, but can be more difficult for guardians who are not parents and for stepparents. The court must first make a finding as to the payor's annual income, usually with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]].

Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements limit themselves by providing that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a termination date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier.

===Getting an order inside British Columbia===

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. Whichever court the parent or guardian wants to proceed in, he or she must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].

===Getting an order outside British Columbia===

A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:

#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',
#start a court proceeding in the place where the other parent lives, or
#start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and try to enforce that order in the place where the other parent lives.

The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out a bunch of paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Reciprocals Office] where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be the ''Family Law Act'' or the ''Divorce Act''.

Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the place 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]]''.

The countries that will cooperate with a proceeding under the ''[[Interjurisdictional Support Orders Act]]'' are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom and Northern Ireland, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] on [[CanLII]] or the [http://www.bclaws.ca/default.html BC Laws] website, for the current list.

The British Columbia Reciprocals Office, along with all of the forms required by the ''Interjurisdictional Support Orders Act'', can be found at [http://www.isoforms.bc.ca www.isoforms.bc.ca].

==Income tax considerations==

It used to be the case that the person paying child support could claim an income tax deduction for his or her support payments, while the recipient had to claim it as taxable income. On 25 April 1997, the federal ''[http://canlii.ca/t/7vb7 Income Tax Act]'' was amended to do away with this rule, and now child support payments are neither deductible for the payor nor taxable for the recipient.

These changes do not apply to court orders or family agreements that were made before 1 May 1997, when the [[Child Support Guidelines]] came into effect. If those orders or agreements are varied at any point after 30 April 1997, however, the new rules will apply and the provisions for child support will become tax neutral.

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/E/pub/tp/it99r5-consolid/ Interpretation Bulletin IT-99R5] for the fine print.

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

==Child support and social assistance==

When a parent who is entitled to receive child support goes on welfare, the government agrees to provide support for that parent and his or her child. If there is someone else who might be obliged to support the child, such as another parent or guardian, the provincial government would prefer that this person pick up the tab rather than the taxpayer, and the government will usually come knocking on the other parent's door.

===Recipients of social assistance applying for child support===

If you are applying for social assistance or are receiving social assistance in British Columbia, you are required to sign a form that allows the government agency responsible for social assistance to take whatever steps are required to collect any child support payments you may be entitled to and keep the child support it collects. This is called ''assigning'' your child support rights. You may be allowed to keep a portion of the child support that the government collects in addition to your social assistance payments. Your case worker will tell you how much.

The collection of child support payments for people on social assistance is run by the [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program] (FMP). (This is a different organization than the Family Maintenance Enforcement Program, which enforces child support payments between parents.) FMP has the authority to pursue child support however it sees fit and can apply for orders or apply to vary child support orders on your behalf. You will be required to cooperate with FMP's actions, but they will be responsible for managing any court applications they begin.

===Applying for child support from a recipient of social assistance===

You can apply to receive child support from a parent who is receiving social assistance, but don't expect to get much for your trouble. The Guidelines does not require that a parent pay child support if the parent's annual income is less than $10,800 per year.

Even if you're not likely to get a lot of money out of the other parent, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to provide child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on his or her feet, than it is to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''[[Family Law Act]]'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.

==Children's right to claim child support==

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

===When there is an order between the parents===

A parent can only be subject to a single order to pay child support for a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if his or her parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less that he or she is required to pay, ''arrears'' build up. The arrears are the sum of the money that should have been paid according to the court order but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, and allows real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment debts.

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 he or she reaches the age of majority, 19 in British Columbia, and becomes an adult able to sue someone.

There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the provincial ''[http://canlii.ca/t/845q Limitation Act]'', the claim must be brought within 10 years of the child first being able to apply to enforce the judgment debt. In other words, the claim must be made before the child turns 29. The case that discusses this is ''[http://canlii.ca/t/1dkms Schmitke v. Schmitke]'', 1993 CanLII 642 (BC SC) a 1993 decision of the Supreme Court, in which the judge concluded that:

<blockquote>"...the right to bring an action for the enforcement of child maintenance is the right of the child. Since the child is 'a person under a disability' within the meaning of s. 7 of the ''Limitation Act'', the running of time is postponed so long as she is a minor."</blockquote>

===When there isn't an order between the parents===

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support. The explanation that follows is a bit complicated, so be patient.

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 s. 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; s.149(2)(b) says that 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.

Why would the court make this assumption? Think of it like this: the ''Divorce Act'', the ''Family Law Act'' and the [[Child Support Guidelines]] say that all of a child's parents and guardians are liable for supporting the child. In fact, [http://canlii.ca/t/7vf2#sec215 s. 215] of the ''Criminal Code'' makes it an offence to fail to provide a child with the "necessaries of life." The legislation on family law issues also assumes that the payment of support by one parent under the Guidelines is not going to be a complete payment of all of the child's needs. Section 1(b) of the Guidelines says that the purpose of the Guidelines is to ensure that children benefit "from the financial means of both spouses after separation." In other words, payment according to the Guidelines child support tables are not assumed to cover all of a child's costs, and the parent receiving the support payments is assumed to contribute towards the child's needs as well.

Third, a child seeking a child support order must qualify as a ''child'', as defined by s. 147 of the ''[[Family Law Act]]'', in order to claim child support. Although the court cannot grant a child support order if the child doesn't qualify as a child within the meaning of the act, 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. Either the child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of his or her parents and therefore still qualifies as a "child" entitled to receive support, or the child is a minor and applies for support through a ''litigation guardian'', formerly known as a guardian ''ad litem''. The first option would probably work, but the second is problematic as the court must approve the appointment of litigation guardians and it would likely refuse to do so if the child still lived with one of his or her parents.

Let's look at two examples to see how this all works.

Example #1

<blockquote>Let's say the parents are separated and the child is living with one of his or her parents.</blockquote>
<blockquote>In a case like this, the parent with whom the child is living has the responsibility of applying for support. As the child is under the age of 19, the child cannot start a court proceeding without the assistance of a litigation guardian. However, since the parent the child is living with is responsible for applying for child support and litigation guardians must be appointed by the court, the court would be likely to refuse to appoint a litigation guardian on the basis that the application is just a smoke screen for the parent's obligation to apply on behalf of the child.</blockquote>
<blockquote>If a child is older than 19 but still qualifies as a ''child'' under s. 146 of the ''Family Law Act'' (typically because the child is ill or disabled and cannot work or because the child is going to college or university), the child could certainly apply for child support. The child is over the age of majority and is able to start an action without a litigation guardian.</blockquote>
<blockquote>The adult child will, however, have to prove that he or she is in financial need. The court will not make a support order automatically. Having a job or being in a married or unmarried spousal relationship with someone will undermine the adult child's chances of success.</blockquote>

Example #2

<blockquote>Now let's say that the child is younger than 19 and is not living with his or her parents.</blockquote>
<blockquote>In a case like this, the parents would be responsible for paying support to the child but the child would have to start an action to claim child support, and would have to be represented by a litigation guardian. Even assuming that the court is prepared to appoint a litigation guardian, getting a child support order is not necessarily a slam dunk.</blockquote>
<blockquote>There are a few cases when minor children — children under the age of majority — have been found not to be entitled to receive child support. Typically, this happens when a child has chosen to move out, has found a job, and is living independently of his or her parents. A financially self-sufficient child who has left his or her parents' home may not be entitled to receive child support payments from them, especially if the child has refused to maintain a relationship with his or her parents.</blockquote>
<blockquote>Making things worse, under s. 147(1) of the ''Family Law Act'', children who are spouses or have voluntarily withdrawn from their parents' or guardians' charge may not be eligible for child support.</blockquote>

===Summary===

That was all a bit complicated. Here's what it boils down to:

*Children will not be able to apply for a child support order when there's an existing child support order.
*If arrears have accrued under an existing child support order, the child can apply to collect those arrears as a judgment debt under the ''Court Order Enforcement Act'', but only after the child has turned 19. The claim must be brought within 10 years of the child becoming able to make the claim.
*Children can only claim new child support orders under the ''Family Law Act''. They cannot apply under the ''Divorce Act''.
*Children who live at home with both parents cannot apply for child support.
*A child who brings a claim for child support must qualify as a ''child'' within the meaning of s. 146 of the ''Family Law Act''.
*Children who have left home and live with neither parent will have to establish financial need before the court will make a child support order. The court will not make the order automatically, and may not make the order at all if it decides that the child left home voluntarily.
*Adult children will also have to show financial need before the court will make a support order.

If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84h6 Court Order Interest Act]''
* ''[http://canlii.ca/t/845q Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Department of Justice: List of reciprocals offices by province]
* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.cra-arc.gc.ca/E/pub/tp/it99r5-consolid/ Canada Revenue Agency's Interpretation Bulletin IT-99R5]
* [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program]
* [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support]
* [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society Family Law Website: Child support]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

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[[Category:JP Boyd on Family Law]]

Child Support

2014-10-09T00:00:39Z

Eugene Raponi: /* The Divorce Act */

{{JPBOFL Start Chapter
|Related = [[Child Support Guidelines|The Guidelines]]{{·}}[[Exceptions to the Child Support Guidelines|Exceptions to the Guidelines]]
{{·}}[[Making Changes to Child Support|Making Changes]]{{·}}[[Child Support Arrears]]
}}
{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Eugene Raponi|Eugene Raponi, QC]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]], which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

This section discusses the basics of child support, and child support orders under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at how to get a child support order inside and outside of British Columbia. It also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support.

Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also discuss [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].

==Introduction==

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing. 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.

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 as a result of the child's needs, and the payment of child support consequently helps 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. Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and almost unrelated to parenting time, contact, or access.

Child support is payable on the principle that both parents have a duty to financially contribute to their child's upbringing. The simple fact of biological parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.

An order for child support can be made under s. 15.1 of the federal ''[[Divorce Act]]'' or s. 149 of the provincial ''[[Family Law Act]]'', or a couple can agree on child support in a separation agreement. Either way, the amount of support awarded must, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contains a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described later in this chapter. The tables were most recently updated on 31 December 2011. For most people, the changes resulted in an increase in the amount of child support payable.

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take precedence.

==The ''Divorce Act''==

The ''Divorce Act'' only applies to people who are or were married to each other, including a parent and a stepparent who are married to each other. A court can only make an order for child support under the ''Divorce Act'' if it has or had the jurisdiction to make an order for the spouses' divorce: the spouses must be or have been legally married, and the spouse making the application must have lived in the province where the application is made for at least one year. Applications under the ''Divorce Act'' can only be heard by the Supreme Court, not the Provincial Court.

Child support is considered so important that a court may not even grant the parties a divorce unless the judge is satisfied that adequate financial provisions are made for the children. See the discussion on [[Divorce#Child support|child support]] in the pages on [[Divorce|divorce]] within the [[Separation & Divorce]] chapter for more.

===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" in order to be eligible for support. There are a couple of important definitions in s. 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>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</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, s. 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><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>

Taken together these definitions mean that:

#child support can be owing from an adoptive parent, as well as a natural parent,
#child support can be owing from stepparents (spouses who "stand in the place of a parent"),
#child support is payable until a child reaches the age of majority in the province where the child lives, and
#child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care.

On this last point, the ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as he or she cannot "withdraw from the charge" of his or her parents. The two main reasons why a child might not be able to withdraw are because the child is going to college or university, or because the child has a serious, chronic illness that prevents him or her from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies him or her as a "child of the marriage" include the following:

#the age of the adult child,
#whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
#the child's academic performance and dedication to his or her studies,
#the spouses' financial situation, and
#any plans the spouses may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program.

As far as "age of majority" is concerned, keep in mind that it is the provinces that have the authority to set the age of majority, not the federal government. In British Columbia, the age of majority is 19. In other provinces the age of majority is 18.

===Statutory provisions===

The primary sections of the ''[[Divorce Act]]'' dealing with child support are these:

*s. 2: definitions
*s. 4: jurisdiction to make child support orders
*s. 5: jurisdiction to change orders
*s. 15.1: child support
*s. 15.3: child support has priority over spousal support
*s. 17: variation proceedings

==The ''Family Law Act''==

A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses or in another unmarried relationship, or if they were in no particular relationship with each other at all. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.

Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.

===Qualifying for child support===

Definitions play an important role in determining eligibility and responsibility for child support under the ''[[Family Law Act]]'', just as they do under the ''[[Divorce Act]]''. Section 147 of the ''[[Family Law Act]]'' says that each parent and guardian of a child is responsible for the support of that child, and s. 146 defines ''child'', ''parent'' and ''guardian'' as follows:

<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;</tt></blockquote>
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>

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

<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, s. 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><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><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>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated.

As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:

*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other.
*Child support can be payable by guardians and stepparents.
*The definition of "stepparent" includes anyone who has been the spouse of a parent and contributed to the support of his or her child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
*Child support can be payable by more than one parent, guardian, and stepparent at the same time.
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of his or her parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondary education.

On this last point, the factors a court will consider in determining whether a child's academic career continues to qualify the child for support include the following:

*the age of the adult child,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
*the child's academic performance and dedication to his or her studies,
*the financial situations of the child's parents, guardians and stepparents, and
*any plans the parties may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parties have a very high income and had always expected that the child would take an advanced degree, child support can be payable for more than one degree program, but this is the exception rather than the rule.

===Stepparents and child support===

The ''[[Family Law Act]]'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, a case decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, 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:

#the marriage was short,
#the stepparent's relationship with the child broke down shortly into the marriage,
#the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
#the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,
#the child's biological parent was paying support, and
#the parent had extended health and dental coverage for the child through the parent's employment.

The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:

<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, 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.

===Securing a child support obligation===

Under s. 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,
#require a payor with life insurance to maintain that policy and specify that a spouse or a child will be the beneficiary of the policy, or
#order that child support continue to be paid after the payor's death and be paid from his or her estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under s. 171(1), the court must consider:

#whether the recipient's need for support will survive the payor's death,
#whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and,
#whether any other means exist to meet the recipient's needs.

===Child support when the payor dies===

When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) that the payor's support obligation will continue and be paid from his or her 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.

===Statutory provisions===

The primary sections of the ''[[Family Law Act]]'' dealing with child support are these:

*s. 1: definitions
*s. 146: more definitions
*s. 147: duty to pay child support
*s. 148: agreements about child support
*s. 149: orders about child support
*s. 150: determining how much child support should be paid
*s. 152: varying orders about child support
*s. 170: securing a child support obligation
*s. 173: child support has priority over spousal support

==Getting a child support order==

There are five things the court must consider before a child support order can be made:

*Does the person asking for the order have the right to claim child support?
*Is the child entitled to receive child support?
*Is the person against whom the order is sought obliged to pay child support?
*How long should the child receive receive support?
*How much support should the child receive?

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. Under the ''[[Divorce Act]]'', the applicant must be a spouse who has lived in the province in which they 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.

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 his or her parents or guardians.

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.

If the first three conditions have been met, the court must then figure out how much the payor should pay. This is pretty easy for parents, but can be more difficult for guardians who are not parents and for stepparents. The court must first make a finding as to the payor's annual income, usually with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]].

Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements limit themselves by providing that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a termination date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier.

===Getting an order inside British Columbia===

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. Whichever court the parent or guardian wants to proceed in, he or she must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].

===Getting an order outside British Columbia===

A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:

#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',
#start a court proceeding in the place where the other parent lives, or
#start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and try to enforce that order in the place where the other parent lives.

The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out a bunch of paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Reciprocals Office] where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be the ''Family Law Act'' or the ''Divorce Act''.

Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the place 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]]''.

The countries that will cooperate with a proceeding under the ''[[Interjurisdictional Support Orders Act]]'' are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom and Northern Ireland, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] on [[CanLII]] or the [http://www.bclaws.ca/default.html BC Laws] website, for the current list.

The British Columbia Reciprocals Office, along with all of the forms required by the ''Interjurisdictional Support Orders Act'', can be found at [http://www.isoforms.bc.ca www.isoforms.bc.ca].

==Income tax considerations==

It used to be the case that the person paying child support could claim an income tax deduction for his or her support payments, while the recipient had to claim it as taxable income. On 25 April 1997, the federal ''[http://canlii.ca/t/7vb7 Income Tax Act]'' was amended to do away with this rule, and now child support payments are neither deductible for the payor nor taxable for the recipient.

These changes do not apply to court orders or family agreements that were made before 1 May 1997, when the [[Child Support Guidelines]] came into effect. If those orders or agreements are varied at any point after 30 April 1997, however, the new rules will apply and the provisions for child support will become tax neutral.

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/E/pub/tp/it99r5-consolid/ Interpretation Bulletin IT-99R5] for the fine print.

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

==Child support and social assistance==

When a parent who is entitled to receive child support goes on welfare, the government agrees to provide support for that parent and his or her child. If there is someone else who might be obliged to support the child, such as another parent or guardian, the provincial government would prefer that this person pick up the tab rather than the taxpayer, and the government will usually come knocking on the other parent's door.

===Recipients of social assistance applying for child support===

If you are applying for social assistance or are receiving social assistance in British Columbia, you are required to sign a form that allows the government agency responsible for social assistance to take whatever steps are required to collect any child support payments you may be entitled to and keep the child support it collects. This is called ''assigning'' your child support rights. You may be allowed to keep a portion of the child support that the government collects in addition to your social assistance payments. Your case worker will tell you how much.

The collection of child support payments for people on social assistance is run by the [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program] (FMP). (This is a different organization than the Family Maintenance Enforcement Program, which enforces child support payments between parents.) FMP has the authority to pursue child support however it sees fit and can apply for orders or apply to vary child support orders on your behalf. You will be required to cooperate with FMP's actions, but they will be responsible for managing any court applications they begin.

===Applying for child support from a recipient of social assistance===

You can apply to receive child support from a parent who is receiving social assistance, but don't expect to get much for your trouble. The Guidelines does not require that a parent pay child support if the parent's annual income is less than $10,800 per year.

Even if you're not likely to get a lot of money out of the other parent, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to provide child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on his or her feet, than it is to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''[[Family Law Act]]'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.

==Children's right to claim child support==

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

===When there is an order between the parents===

A parent can only be subject to a single order to pay child support for a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if his or her parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less that he or she is required to pay, ''arrears'' build up. The arrears are the sum of the money that should have been paid according to the court order but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, and allows real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment debts.

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 he or she reaches the age of majority, 19 in British Columbia, and becomes an adult able to sue someone.

There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the provincial ''[http://canlii.ca/t/845q Limitation Act]'', the claim must be brought within 10 years of the child first being able to apply to enforce the judgment debt. In other words, the claim must be made before the child turns 29. The case that discusses this is ''[http://canlii.ca/t/1dkms Schmitke v. Schmitke]'', 1993 CanLII 642 (BC SC) a 1993 decision of the Supreme Court, in which the judge concluded that:

<blockquote>"...the right to bring an action for the enforcement of child maintenance is the right of the child. Since the child is 'a person under a disability' within the meaning of s. 7 of the ''Limitation Act'', the running of time is postponed so long as she is a minor."</blockquote>

===When there isn't an order between the parents===

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support. The explanation that follows is a bit complicated, so be patient.

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 s. 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; s.149(2)(b) says that 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.

Why would the court make this assumption? Think of it like this: the ''Divorce Act'', the ''Family Law Act'' and the [[Child Support Guidelines]] say that all of a child's parents and guardians are liable for supporting the child. In fact, [http://canlii.ca/t/7vf2#sec215 s. 215] of the ''Criminal Code'' makes it an offence to fail to provide a child with the "necessaries of life." The legislation on family law issues also assumes that the payment of support by one parent under the Guidelines is not going to be a complete payment of all of the child's needs. Section 1(b) of the Guidelines says that the purpose of the Guidelines is to ensure that children benefit "from the financial means of both spouses after separation." In other words, payment according to the Guidelines child support tables are not assumed to cover all of a child's costs, and the parent receiving the support payments is assumed to contribute towards the child's needs as well.

Third, a child seeking a child support order must qualify as a ''child'', as defined by s. 147 of the ''[[Family Law Act]]'', in order to claim child support. Although the court cannot grant a child support order if the child doesn't qualify as a child within the meaning of the act, 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. Either the child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of his or her parents and therefore still qualifies as a "child" entitled to receive support, or the child is a minor and applies for support through a ''litigation guardian'', formerly known as a guardian ''ad litem''. The first option would probably work, but the second is problematic as the court must approve the appointment of litigation guardians and it would likely refuse to do so if the child still lived with one of his or her parents.

Let's look at two examples to see how this all works.

Example #1

<blockquote>Let's say the parents are separated and the child is living with one of his or her parents.</blockquote>
<blockquote>In a case like this, the parent with whom the child is living has the responsibility of applying for support. As the child is under the age of 19, the child cannot start a court proceeding without the assistance of a litigation guardian. However, since the parent the child is living with is responsible for applying for child support and litigation guardians must be appointed by the court, the court would be likely to refuse to appoint a litigation guardian on the basis that the application is just a smoke screen for the parent's obligation to apply on behalf of the child.</blockquote>
<blockquote>If a child is older than 19 but still qualifies as a ''child'' under s. 146 of the ''Family Law Act'' (typically because the child is ill or disabled and cannot work or because the child is going to college or university), the child could certainly apply for child support. The child is over the age of majority and is able to start an action without a litigation guardian.</blockquote>
<blockquote>The adult child will, however, have to prove that he or she is in financial need. The court will not make a support order automatically. Having a job or being in a married or unmarried spousal relationship with someone will undermine the adult child's chances of success.</blockquote>

Example #2

<blockquote>Now let's say that the child is younger than 19 and is not living with his or her parents.</blockquote>
<blockquote>In a case like this, the parents would be responsible for paying support to the child but the child would have to start an action to claim child support, and would have to be represented by a litigation guardian. Even assuming that the court is prepared to appoint a litigation guardian, getting a child support order is not necessarily a slam dunk.</blockquote>
<blockquote>There are a few cases when minor children — children under the age of majority — have been found not to be entitled to receive child support. Typically, this happens when a child has chosen to move out, has found a job, and is living independently of his or her parents. A financially self-sufficient child who has left his or her parents' home may not be entitled to receive child support payments from them, especially if the child has refused to maintain a relationship with his or her parents.</blockquote>
<blockquote>Making things worse, under s. 147(1) of the ''Family Law Act'', children who are spouses or have voluntarily withdrawn from their parents' or guardians' charge may not be eligible for child support.</blockquote>

===Summary===

That was all a bit complicated. Here's what it boils down to:

*Children will not be able to apply for a child support order when there's an existing child support order.
*If arrears have accrued under an existing child support order, the child can apply to collect those arrears as a judgment debt under the ''Court Order Enforcement Act'', but only after the child has turned 19. The claim must be brought within 10 years of the child becoming able to make the claim.
*Children can only claim new child support orders under the ''Family Law Act''. They cannot apply under the ''Divorce Act''.
*Children who live at home with both parents cannot apply for child support.
*A child who brings a claim for child support must qualify as a ''child'' within the meaning of s. 146 of the ''Family Law Act''.
*Children who have left home and live with neither parent will have to establish financial need before the court will make a child support order. The court will not make the order automatically, and may not make the order at all if it decides that the child left home voluntarily.
*Adult children will also have to show financial need before the court will make a support order.

If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84h6 Court Order Interest Act]''
* ''[http://canlii.ca/t/845q Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Department of Justice: List of reciprocals offices by province]
* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.cra-arc.gc.ca/E/pub/tp/it99r5-consolid/ Canada Revenue Agency's Interpretation Bulletin IT-99R5]
* [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program]
* [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support]
* [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society Family Law Website: Child support]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

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[[Category:JP Boyd on Family Law]]

Child Support

2014-10-08T23:50:07Z

Eugene Raponi: /* Introduction */

{{JPBOFL Start Chapter
|Related = [[Child Support Guidelines|The Guidelines]]{{·}}[[Exceptions to the Child Support Guidelines|Exceptions to the Guidelines]]
{{·}}[[Making Changes to Child Support|Making Changes]]{{·}}[[Child Support Arrears]]
}}
{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Eugene Raponi|Eugene Raponi, QC]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [http://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]], which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always the amount set out in the tables.

This section discusses the basics of child support, and child support orders under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at how to get a child support order inside and outside of British Columbia. It also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support.

Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also discuss [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].

==Introduction==

After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing. 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.

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 as a result of the child's needs, and the payment of child support consequently helps 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. Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and almost unrelated to parenting time, contact, or access.

Child support is payable on the principle that both parents have a duty to financially contribute to their child's upbringing. The simple fact of biological parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation.

An order for child support can be made under s. 15.1 of the federal ''[[Divorce Act]]'' or s. 149 of the provincial ''[[Family Law Act]]'', or a couple can agree on child support in a separation agreement. Either way, the amount of support awarded must, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contains a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described later in this chapter. The tables were most recently updated on 31 December 2011. For most people, the changes resulted in an increase in the amount of child support payable.

Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take precedence.

==The ''Divorce Act''==

The ''Divorce Act'' only applies to people who are or were married to each other, including a parent and a stepparent who are married to each other. A court can only make an order for child support under the ''Divorce Act'' if it has or had the jurisdiction to make an order for the spouses' divorce: the spouses must be or have been legally married, and the spouse making the application must have lived in the province where the application is made for at least one year. Applications under the ''Divorce Act'' can only be heard by the Supreme Court.

===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" in order to be eligible for support. There are a couple of important definitions in s. 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>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</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, s. 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><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>

Taken together these definitions mean that:

#child support can be owing from an adoptive parent, as well as a natural parent,
#child support can be owing from stepparents (spouses who "stand in the place of a parent"),
#child support is payable until a child reaches the age of majority in the province where the child lives, and
#child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care.

On this last point, the ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as he or she cannot "withdraw from the charge" of his or her parents. The two main reasons why a child might not be able to withdraw are because the child is going to college or university, or because the child has a serious, chronic illness that prevents him or her from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies him or her as a "child of the marriage" include the following:

#the age of the adult child,
#whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
#the child's academic performance and dedication to his or her studies,
#the spouses' financial situation, and
#any plans the spouses may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program.

As far as "age of majority" is concerned, keep in mind that it is the provinces that have the authority to set the age of majority, not the federal government. In British Columbia, the age of majority is 19. In other provinces the age of majority is 18.

===Statutory provisions===

The primary sections of the ''[[Divorce Act]]'' dealing with child support are these:

*s. 2: definitions
*s. 4: jurisdiction to make child support orders
*s. 5: jurisdiction to change orders
*s. 15.1: child support
*s. 15.3: child support has priority over spousal support
*s. 17: variation proceedings

==The ''Family Law Act''==

A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses or in another unmarried relationship, or if they were in no particular relationship with each other at all. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.

Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.

===Qualifying for child support===

Definitions play an important role in determining eligibility and responsibility for child support under the ''[[Family Law Act]]'', just as they do under the ''[[Divorce Act]]''. Section 147 of the ''[[Family Law Act]]'' says that each parent and guardian of a child is responsible for the support of that child, and s. 146 defines ''child'', ''parent'' and ''guardian'' as follows:

<blockquote><tt>"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;</tt></blockquote>
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];</tt></blockquote>

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

<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, s. 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><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><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>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated.

As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:

*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other.
*Child support can be payable by guardians and stepparents.
*The definition of "stepparent" includes anyone who has been the spouse of a parent and contributed to the support of his or her child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
*Child support can be payable by more than one parent, guardian, and stepparent at the same time.
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of his or her parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondary education.

On this last point, the factors a court will consider in determining whether a child's academic career continues to qualify the child for support include the following:

*the age of the adult child,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
*the child's academic performance and dedication to his or her studies,
*the financial situations of the child's parents, guardians and stepparents, and
*any plans the parties may have made for the child's post-secondary schooling while they were still together.

In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parties have a very high income and had always expected that the child would take an advanced degree, child support can be payable for more than one degree program, but this is the exception rather than the rule.

===Stepparents and child support===

The ''[[Family Law Act]]'' says that stepparents can be responsible for paying child support just as biological and adoptive parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the act's definitions of ''parent'' and ''stepparent'' can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, a case decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, 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:

#the marriage was short,
#the stepparent's relationship with the child broke down shortly into the marriage,
#the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
#the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,
#the child's biological parent was paying support, and
#the parent had extended health and dental coverage for the child through the parent's employment.

The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:

<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, 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.

===Securing a child support obligation===

Under s. 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,
#require a payor with life insurance to maintain that policy and specify that a spouse or a child will be the beneficiary of the policy, or
#order that child support continue to be paid after the payor's death and be paid from his or her estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under s. 171(1), the court must consider:

#whether the recipient's need for support will survive the payor's death,
#whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and,
#whether any other means exist to meet the recipient's needs.

===Child support when the payor dies===

When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) that the payor's support obligation will continue and be paid from his or her 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.

===Statutory provisions===

The primary sections of the ''[[Family Law Act]]'' dealing with child support are these:

*s. 1: definitions
*s. 146: more definitions
*s. 147: duty to pay child support
*s. 148: agreements about child support
*s. 149: orders about child support
*s. 150: determining how much child support should be paid
*s. 152: varying orders about child support
*s. 170: securing a child support obligation
*s. 173: child support has priority over spousal support

==Getting a child support order==

There are five things the court must consider before a child support order can be made:

*Does the person asking for the order have the right to claim child support?
*Is the child entitled to receive child support?
*Is the person against whom the order is sought obliged to pay child support?
*How long should the child receive receive support?
*How much support should the child receive?

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. Under the ''[[Divorce Act]]'', the applicant must be a spouse who has lived in the province in which they 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.

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 his or her parents or guardians.

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.

If the first three conditions have been met, the court must then figure out how much the payor should pay. This is pretty easy for parents, but can be more difficult for guardians who are not parents and for stepparents. The court must first make a finding as to the payor's annual income, usually with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]].

Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements limit themselves by providing that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a termination date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier.

===Getting an order inside British Columbia===

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. Whichever court the parent or guardian wants to proceed in, he or she must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].

===Getting an order outside British Columbia===

A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:

#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',
#start a court proceeding in the place where the other parent lives, or
#start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and try to enforce that order in the place where the other parent lives.

The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out a bunch of paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Reciprocals Office] where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be the ''Family Law Act'' or the ''Divorce Act''.

Only certain jurisdictions have agreed to the ''Interjurisdictional Support Orders Act'' process. If the place 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]]''.

The countries that will cooperate with a proceeding under the ''[[Interjurisdictional Support Orders Act]]'' are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom and Northern Ireland, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] on [[CanLII]] or the [http://www.bclaws.ca/default.html BC Laws] website, for the current list.

The British Columbia Reciprocals Office, along with all of the forms required by the ''Interjurisdictional Support Orders Act'', can be found at [http://www.isoforms.bc.ca www.isoforms.bc.ca].

==Income tax considerations==

It used to be the case that the person paying child support could claim an income tax deduction for his or her support payments, while the recipient had to claim it as taxable income. On 25 April 1997, the federal ''[http://canlii.ca/t/7vb7 Income Tax Act]'' was amended to do away with this rule, and now child support payments are neither deductible for the payor nor taxable for the recipient.

These changes do not apply to court orders or family agreements that were made before 1 May 1997, when the [[Child Support Guidelines]] came into effect. If those orders or agreements are varied at any point after 30 April 1997, however, the new rules will apply and the provisions for child support will become tax neutral.

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/E/pub/tp/it99r5-consolid/ Interpretation Bulletin IT-99R5] for the fine print.

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

==Child support and social assistance==

When a parent who is entitled to receive child support goes on welfare, the government agrees to provide support for that parent and his or her child. If there is someone else who might be obliged to support the child, such as another parent or guardian, the provincial government would prefer that this person pick up the tab rather than the taxpayer, and the government will usually come knocking on the other parent's door.

===Recipients of social assistance applying for child support===

If you are applying for social assistance or are receiving social assistance in British Columbia, you are required to sign a form that allows the government agency responsible for social assistance to take whatever steps are required to collect any child support payments you may be entitled to and keep the child support it collects. This is called ''assigning'' your child support rights. You may be allowed to keep a portion of the child support that the government collects in addition to your social assistance payments. Your case worker will tell you how much.

The collection of child support payments for people on social assistance is run by the [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program] (FMP). (This is a different organization than the Family Maintenance Enforcement Program, which enforces child support payments between parents.) FMP has the authority to pursue child support however it sees fit and can apply for orders or apply to vary child support orders on your behalf. You will be required to cooperate with FMP's actions, but they will be responsible for managing any court applications they begin.

===Applying for child support from a recipient of social assistance===

You can apply to receive child support from a parent who is receiving social assistance, but don't expect to get much for your trouble. The Guidelines does not require that a parent pay child support if the parent's annual income is less than $10,800 per year.

Even if you're not likely to get a lot of money out of the other parent, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to provide child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on his or her feet, than it is to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''[[Family Law Act]]'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.

==Children's right to claim child support==

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

===When there is an order between the parents===

A parent can only be subject to a single order to pay child support for a particular child, and if there is an order between the parents to pay child support, an adult child cannot obtain a new order. The adult child can, however, apply to enforce the old order if his or her parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less that he or she is required to pay, ''arrears'' build up. The arrears are the sum of the money that should have been paid according to the court order but wasn't paid. Arrears are a ''judgment debt'', just like any other debt owing because of a court order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, and allows real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment debts.

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 he or she reaches the age of majority, 19 in British Columbia, and becomes an adult able to sue someone.

There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the provincial ''[http://canlii.ca/t/845q Limitation Act]'', the claim must be brought within 10 years of the child first being able to apply to enforce the judgment debt. In other words, the claim must be made before the child turns 29. The case that discusses this is ''[http://canlii.ca/t/1dkms Schmitke v. Schmitke]'', 1993 CanLII 642 (BC SC) a 1993 decision of the Supreme Court, in which the judge concluded that:

<blockquote>"...the right to bring an action for the enforcement of child maintenance is the right of the child. Since the child is 'a person under a disability' within the meaning of s. 7 of the ''Limitation Act'', the running of time is postponed so long as she is a minor."</blockquote>

===When there isn't an order between the parents===

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support. The explanation that follows is a bit complicated, so be patient.

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 s. 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; s.149(2)(b) says that 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.

Why would the court make this assumption? Think of it like this: the ''Divorce Act'', the ''Family Law Act'' and the [[Child Support Guidelines]] say that all of a child's parents and guardians are liable for supporting the child. In fact, [http://canlii.ca/t/7vf2#sec215 s. 215] of the ''Criminal Code'' makes it an offence to fail to provide a child with the "necessaries of life." The legislation on family law issues also assumes that the payment of support by one parent under the Guidelines is not going to be a complete payment of all of the child's needs. Section 1(b) of the Guidelines says that the purpose of the Guidelines is to ensure that children benefit "from the financial means of both spouses after separation." In other words, payment according to the Guidelines child support tables are not assumed to cover all of a child's costs, and the parent receiving the support payments is assumed to contribute towards the child's needs as well.

Third, a child seeking a child support order must qualify as a ''child'', as defined by s. 147 of the ''[[Family Law Act]]'', in order to claim child support. Although the court cannot grant a child support order if the child doesn't qualify as a child within the meaning of the act, 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. Either the child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of his or her parents and therefore still qualifies as a "child" entitled to receive support, or the child is a minor and applies for support through a ''litigation guardian'', formerly known as a guardian ''ad litem''. The first option would probably work, but the second is problematic as the court must approve the appointment of litigation guardians and it would likely refuse to do so if the child still lived with one of his or her parents.

Let's look at two examples to see how this all works.

Example #1

<blockquote>Let's say the parents are separated and the child is living with one of his or her parents.</blockquote>
<blockquote>In a case like this, the parent with whom the child is living has the responsibility of applying for support. As the child is under the age of 19, the child cannot start a court proceeding without the assistance of a litigation guardian. However, since the parent the child is living with is responsible for applying for child support and litigation guardians must be appointed by the court, the court would be likely to refuse to appoint a litigation guardian on the basis that the application is just a smoke screen for the parent's obligation to apply on behalf of the child.</blockquote>
<blockquote>If a child is older than 19 but still qualifies as a ''child'' under s. 146 of the ''Family Law Act'' (typically because the child is ill or disabled and cannot work or because the child is going to college or university), the child could certainly apply for child support. The child is over the age of majority and is able to start an action without a litigation guardian.</blockquote>
<blockquote>The adult child will, however, have to prove that he or she is in financial need. The court will not make a support order automatically. Having a job or being in a married or unmarried spousal relationship with someone will undermine the adult child's chances of success.</blockquote>

Example #2

<blockquote>Now let's say that the child is younger than 19 and is not living with his or her parents.</blockquote>
<blockquote>In a case like this, the parents would be responsible for paying support to the child but the child would have to start an action to claim child support, and would have to be represented by a litigation guardian. Even assuming that the court is prepared to appoint a litigation guardian, getting a child support order is not necessarily a slam dunk.</blockquote>
<blockquote>There are a few cases when minor children — children under the age of majority — have been found not to be entitled to receive child support. Typically, this happens when a child has chosen to move out, has found a job, and is living independently of his or her parents. A financially self-sufficient child who has left his or her parents' home may not be entitled to receive child support payments from them, especially if the child has refused to maintain a relationship with his or her parents.</blockquote>
<blockquote>Making things worse, under s. 147(1) of the ''Family Law Act'', children who are spouses or have voluntarily withdrawn from their parents' or guardians' charge may not be eligible for child support.</blockquote>

===Summary===

That was all a bit complicated. Here's what it boils down to:

*Children will not be able to apply for a child support order when there's an existing child support order.
*If arrears have accrued under an existing child support order, the child can apply to collect those arrears as a judgment debt under the ''Court Order Enforcement Act'', but only after the child has turned 19. The claim must be brought within 10 years of the child becoming able to make the claim.
*Children can only claim new child support orders under the ''Family Law Act''. They cannot apply under the ''Divorce Act''.
*Children who live at home with both parents cannot apply for child support.
*A child who brings a claim for child support must qualify as a ''child'' within the meaning of s. 146 of the ''Family Law Act''.
*Children who have left home and live with neither parent will have to establish financial need before the court will make a child support order. The court will not make the order automatically, and may not make the order at all if it decides that the child left home voluntarily.
*Adult children will also have to show financial need before the court will make a support order.

If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84h6 Court Order Interest Act]''
* ''[http://canlii.ca/t/845q Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Department of Justice: List of reciprocals offices by province]
* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.cra-arc.gc.ca/E/pub/tp/it99r5-consolid/ Canada Revenue Agency's Interpretation Bulletin IT-99R5]
* [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program]
* [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support]
* [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society Family Law Website: Child support]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

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[[Category:JP Boyd on Family Law]]

Eugene Raponi

2013-06-19T00:21:27Z

Eugene Raponi:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Eugene Raponi, QC''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Child Support]]. Eugene is a graduate of University of Victoria Law School, and was called to the BC Bar in 1982. He is a partner with Waddell Raponi in Victoria where he practices civil litigation, family law and mediation. Eugene is active in the legal community as a current governor of the Law Foundation of BC, an ongoing lecturer with the Continuing Legal Education Society of BC, a director with the Greater Victoria Citizens' Counselling Centre, and a member of the Supreme Court Rules Revision Committee. He is the recipient of the 2008 Presidential Citation from the Canadian Bar Association BC for outstanding work as chair of the advisory committee to the Judicial Council of BC and the recipient of the 2006 Pamela Murray Award from the Victoria Bar association for his professional standards and contributions to the local bar association. He is a past sessional instructor with the University of Victoria Law School and a member of the Victoria Collaborative Family Law Group.
Eugene holds his Bachelor of Laws from the University of Victoria. He was appointed to Queen's Counsel in 2009.

| name = Eugene Raponi, QC
| image = [[image:eraponi.png|150px|left|link=|Eugene Raponi]]
| organization = Waddell Raponi
| website = [http://www.waddellraponi.com www.waddellraponi.com]
}}

<noinclude>
[[Category:Contributor Bio|Raponi]]
[[Category:JP Boyd on Family Law Contributors|Raponi]]
</noinclude>

Eugene Raponi

2013-06-19T00:19:18Z

Eugene Raponi:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Eugene Raponi, QC''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Child Support]]. Eugene is a graduate of University of Victoria Law School, and was called to the BC Bar in 1982. He is a partner with Waddell Raponi in Victoria where he practices family law and mediation. Eugene is active in the legal community as a current governor of the Law Foundation of BC, an ongoing lecturer with the Continuing Legal Education Society of BC, a director with the Greater Victoria Citizens' Counselling Centre, and a member of the Supreme Court Rules Revision Committee. He is the recipient of the 2008 Presidential Citation from the Canadian Bar Association BC for outstanding work as chair of the advisory committee to the Judicial Council of BC and the recipient of the 2006 Pamela Murray Award from the Victoria Bar association for his professional standards and contributions to the local bar association. He is a past sessional instructor with the University of Victoria Law School.
Eugene holds his Bachelor of Laws from the University of Victoria. He was appointed to Queen's Counsel in 2009.

| name = Eugene Raponi, QC
| image = [[image:eraponi.png|150px|left|link=|Eugene Raponi]]
| organization = Waddell Raponi
| website = [http://www.waddellraponi.com www.waddellraponi.com]
}}

<noinclude>
[[Category:Contributor Bio|Raponi]]
[[Category:JP Boyd on Family Law Contributors|Raponi]]
</noinclude>

Eugene Raponi

2013-06-19T00:17:58Z

Eugene Raponi:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Eugene Raponi, QC''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Child Support]]. Eugene is a graduate of University of Victoria Law School, and was called to the BC Bar in 1982. He is a partner with Waddell Raponi in Victoria where he practices family law and mediation. Eugene is active in the legal community as a current governor of the Law Foundation of BC, an ongoing lecturer with the Continuing Legal Education Society of BC, a director with the Greater Victoria Citizens' Counselling Centre, and a member of the Supreme Court Rules Revision Committee. He is the recipient of the 2008 Presidential Citation from the Canadian Bar Association BC for outstanding work as chair of the advisory committee to the Judicial Council of BC and the recipient of the 2006 Pamela Murray Award from the Victoria Bar association for his professional standards and contributions to the local bar association. He is a past sessional instructor with the University of Victoria Law School.
Eugene holds his Bachelor of Laws from the University of Victoria. He was appointed to Queen's Counsel in 2009.

| name = Eugene Raponi, QC
| image = [[image:eraponi.png|150px|left|link=|Eugene Raponi]]
| organization = Waddell Raponi
| website = [http://www.waddellraponi.co www.waddellraponi.com]
}}

<noinclude>
[[Category:Contributor Bio|Raponi]]
[[Category:JP Boyd on Family Law Contributors|Raponi]]
</noinclude>

User talk:Eugene Raponi

2013-06-19T00:16:53Z

Eugene Raponi: Created page with "==Comments for Eugene== Please remember to sign your comments."

==Comments for Eugene==
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Talk:Eugene Raponi

2013-06-19T00:16:20Z

Eugene Raponi: Redirected page to User talk:Eugene Raponi

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2013-06-19T00:15:55Z

Eugene Raponi: Eugene Raponi moved page User:Eugene Raponi to Eugene Raponi

#REDIRECT [[Eugene Raponi]]

Eugene Raponi

2013-06-19T00:15:55Z

Eugene Raponi: Eugene Raponi moved page User:Eugene Raponi to Eugene Raponi

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Eugene Raponi, QC''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Child Support]]. Eugene is a graduate of University of Victoria Law School, and was called in 1982. He is a partner with Waddell Raponi in Victoria where he practices family law and mediation. Eugene is active in the legal community as a current governor of the Law Foundation of BC, an ongoing lecturer with the Continuing Legal Education Society of BC, a director with the Greater Victoria Citizens' Counselling Centre, and a member of the Supreme Court Rules Revision Committee. He is the recipient of the 2008 Presidential Citation from the Canadian Bar Association BC for outstanding work as chair of the advisory committee to the Judicial Council of BC and the recipient of the 2006 Pamela Murray Award from the Victoria Bar association for his professional standards and contributions to the local bar association. He is a past sessional instructor with the University of Victoria Law School.
Eugene holds his Bachelor of Laws from the University of Victoria. He was appointed to Queen's Counsel in 2009.

| name = Eugene Raponi, QC
| image = [[image:eraponi.png|150px|left|link=|Eugene Raponi]]
| organization = Waddell Raponi
| website = [http://www.waddellraponi.co www.waddellraponi.com]
}}

<noinclude>
[[Category:Contributor Bio|Raponi]]
[[Category:JP Boyd on Family Law Contributors|Raponi]]
</noinclude>

File:Eraponi.png

2013-06-19T00:15:35Z

Eugene Raponi:

Eugene Raponi

2013-06-19T00:15:05Z

Eugene Raponi: Created page with "<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor | bio = '''Eugene Raponi, QC''' is a senior subject editor for ''JP Boyd on Family Law'', a..."

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Eugene Raponi, QC''' is a senior subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Child Support]]. Eugene is a graduate of University of Victoria Law School, and was called in 1982. He is a partner with Waddell Raponi in Victoria where he practices family law and mediation. Eugene is active in the legal community as a current governor of the Law Foundation of BC, an ongoing lecturer with the Continuing Legal Education Society of BC, a director with the Greater Victoria Citizens' Counselling Centre, and a member of the Supreme Court Rules Revision Committee. He is the recipient of the 2008 Presidential Citation from the Canadian Bar Association BC for outstanding work as chair of the advisory committee to the Judicial Council of BC and the recipient of the 2006 Pamela Murray Award from the Victoria Bar association for his professional standards and contributions to the local bar association. He is a past sessional instructor with the University of Victoria Law School.
Eugene holds his Bachelor of Laws from the University of Victoria. He was appointed to Queen's Counsel in 2009.

| name = Eugene Raponi, QC
| image = [[image:eraponi.png|150px|left|link=|Eugene Raponi]]
| organization = Waddell Raponi
| website = [http://www.waddellraponi.co www.waddellraponi.com]
}}

<noinclude>
[[Category:Contributor Bio|Raponi]]
[[Category:JP Boyd on Family Law Contributors|Raponi]]
</noinclude>