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How Do I Get Out of Paying Child Support?

2019-06-15T02:07:17Z

Inga Phillips:

{{JP Boyd on Family Law How Do I TOC|expanded=obligation}}

The answer is pretty simple most of the time: ''you don't''.

==Biological parents==

The law in Canada is that a biological parent must pay child support when the child lives with the other parent most of the time.

Since child support is the right of the child, not the right of the parent, neither parent has the right or ability to bargain away child support in exchange for giving up, for example, the right to seek custody of or access to the child. Agreements like that are not upheld by the courts. It is the court's duty to ensure that after separation parents make appropriate financial arrangements for the children.

The duty to pay child support stems from the simple fact that both parents contributed some of their genes to make a baby, and that's something you just can't get out of. It's a biological fact that has nothing to do with the ages of the parents, their marital status, whether they lived together or not, or whether both parents have maintained or want to maintain a relationship with the child. There are only two exceptions: if the child is born as a result of assisted reproduction - in that case, the donor is not, by reason only of the donation, the child's parent, and adoption of the child.

There are only a few ways to get out of an obligation to pay child support:

*the child lives with you for the majority of the time, in which case the other parent will be required to pay child support to you;
*if you give the child up for adoption, in which case, following the adoption, you will will not have any obligations at all toward the child; and
*if you and the other parent have equal or close to equal parenting time with the child and both of you make the same income.

==Stepparents==

The ''Divorce Act'' and the ''Family Law Act'' both say that stepparents may be required to pay child support, but only if the parent and the stepparent separate.

Under the ''Divorce Act'', this means someone who married a parent.

Under the ''Family Law Act'', this means the guardian of a child and a person who was the married spouse or unmarried spouse of a parent and contributed to the support of that parent's child for at least one year.

The nice thing about being a stepparent is that the other biological parent's obligation to pay child support can be taken into account when the amount of the stepparent's child support payments is being figured out, which usually means that support will be paid in an amount less than what the Child Support Guidelines require.

You can find out more about the obligations of stepparents to pay child support in the chapter [[Child Support]].

{{REVIEWED | reviewer = [[Inga Phillips]], June 14, 2019}}

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How Do I Get Out of Paying Child Support?

2019-06-15T02:06:39Z

Inga Phillips:

{{JP Boyd on Family Law How Do I TOC|expanded=obligation}}

The answer is pretty simple most of the time: ''you don't''.

==Biological parents==

The law in Canada is that a biological parent must pay child support when the child lives with the other parent most of the time.

Since child support is the right of the child, not the right of the parent, neither parent has the right or ability to bargain away child support in exchange for giving up, for example, the right to seek custody of or access to the child. Agreements like that are not upheld by the courts. It is the court's duty to ensure that after separation parents make appropriate financial arrangements for the children.

The duty to pay child support stems from the simple fact that both parents contributed some of their genes to make a baby, and that's something you just can't get out of. It's a biological fact that has nothing to do with the ages of the parents, their marital status, whether they lived together or not, or whether both parents have maintained or want to maintain a relationship with the child. There are only two exceptions: if the child is born as a result of assisted reproduction - in that case, the donor is not, by reason only of the donation, the child's parent, and adoption of the child.

There are only a few ways to get out of an obligation to pay child support:

*the child lives with you for the majority of the time, in which case the other parent will be required to pay child support to you;
*if you give the child up for adoption, in which case, following the adoption, you will will not have any obligations at all toward the child; and
*if you and the other parent have equal or close to equal parenting time with the child and both of you make the same income.

==Stepparents==

The ''Divorce Act'' and the ''Family Law Act'' both say that stepparents may be required to pay child support, but only if the parent and the stepparent separate.

Under the ''Divorce Act'', this means someone who married a parent.

Under the ''Family Law Act'', this means the guardian of a child and a person who was the married spouse or unmarried spouse of a parent and contributed to the support of that parent's child for at least one year.

The nice thing about being a stepparent is that the other biological parent's obligation to pay child support can be taken into account when the amount of the stepparent's child support payments is being figured out, which usually means that support will be paid in an amount less than what the Child Support Guidelines require.

You can find out more about the obligations of stepparents to pay child support in the chapter [[Child Support]].

{{REVIEWED | reviewer = [[Inga Phillips]], May 18, 2019}}

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Child Support Arrears

2019-06-15T02:01:36Z

Inga Phillips:

Exceptions to the Child Support Guidelines

2019-06-15T01:48:35Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing

'''
===
==== Income Tax and Child Tax Benefits====

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only says that one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.

== Other Arrangements for the Children's Direct or Indirect Benefit ==

Section 11(1) (b) of the ''Divorce Act'' requires a judge to be satisfied that reasonable arrangements have been made for the support of the children of the marriage before signing off on the divorce. This usually requires that the ''Child Support Guideline amount of child support be paid.

However, Section 15.1 (5) of the ''Divorce Act'' allows the court to order a different amount of child support or accept an agreement between the parents and give them the divorce, but this is unusual, and the parents must show that they made reasonable financial arrangements for the children. An example would be where the parents decide that one parent takes less than half of the value of the house and gives it to the other parent who continues to live in the house with the children. This is unusual, and will probably require the help of a lawyer.


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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Exceptions to the Child Support Guidelines

2019-06-15T01:48:14Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing

'''
===
==== Income Tax and Child Tax Benefits====
===
'''

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only says that one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.

== Other Arrangements for the Children's Direct or Indirect Benefit ==

Section 11(1) (b) of the ''Divorce Act'' requires a judge to be satisfied that reasonable arrangements have been made for the support of the children of the marriage before signing off on the divorce. This usually requires that the ''Child Support Guideline amount of child support be paid.

However, Section 15.1 (5) of the ''Divorce Act'' allows the court to order a different amount of child support or accept an agreement between the parents and give them the divorce, but this is unusual, and the parents must show that they made reasonable financial arrangements for the children. An example would be where the parents decide that one parent takes less than half of the value of the house and gives it to the other parent who continues to live in the house with the children. This is unusual, and will probably require the help of a lawyer.


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2019-06-15T01:47:24Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing

'''
=== Income Tax and Child Tax Benefits ===
'''

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only says that one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.

== Other Arrangements for the Children's Direct or Indirect Benefit ==

Section 11(1) (b) of the ''Divorce Act'' requires a judge to be satisfied that reasonable arrangements have been made for the support of the children of the marriage before signing off on the divorce. This usually requires that the ''Child Support Guideline amount of child support be paid.

However, Section 15.1 (5) of the ''Divorce Act'' allows the court to order a different amount of child support or accept an agreement between the parents and give them the divorce, but this is unusual, and the parents must show that they made reasonable financial arrangements for the children. An example would be where the parents decide that one parent takes less than half of the value of the house and gives it to the other parent who continues to live in the house with the children. This is unusual, and will probably require the help of a lawyer.


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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Child Support Arrears

2019-06-15T01:45:32Z

Inga Phillips:

Changing Family Law Orders, Awards and Agreements Involving Child Support

2019-06-15T01:45:05Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] 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, provided 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 jurisdiction. 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 when the court proceeding to vary the order is started, or if both parties agree, 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 in part:

<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 usually be made according to the Child Support Guidelines.
*The court may make an order for support different from the Guidelines if there exists an order or agreement with special provisions for the direct or indirect benefit 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 or a commissioner for taking affidavits:

*The payor must produce a financial statement dealing with their 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, or a claim for undue hardship, or 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. Links to and examples of Supreme Court forms are available in 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==

In British Columbia, the Federal Child Support Guidelines are adopted by regulation and the ''[[Family Law Act]]'' provides for variation of child support in virtually the same way as the ''[[Divorce Act]]'.

Under s. 148(3), the court may set aside an agreement with respect to 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===

The law is the same with respect to financial statements whether the application to vary child support is brought under the ''[[Family Law Act]]'' or the ''[[Divorce Act]]''. See Rule 5-1 of the Supreme Court Family Rules which sets out the requirements for financial disclosure in Supreme Court Family Proceedings, and Rule 4 of Provincial Court (Family) Rules for Provincial Court Family Proceedings.

===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 Child Support Guidelines came into effect on May 1, 1997. Child support orders or agreements before that date allowed child support payments to be tax-deductible for the payor and taxable for the recipient unless and until varied. It is doubtful that any such agreements or orders are still in effect but, if you have one, consult a lawyer.

==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 other reasons why it can be hard to change an order made outside of British Columbia, but that's the substance 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 where the original order was made, 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 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 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, Swiss Confederation, Northern Ireland, the United Kingdom, the United States of America and its protectorates, 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 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 to 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 more information and 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 take effect retroactively, i.e. 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 retroactivity 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, at paragraph 66, the court set out factors to consider in deciding if a retroactive order for support is appropriate:

<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: (1) the need on the part of the child and a corresponding ability to pay on the part of the non-custodial parent; (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; (3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses; (4) an excuse for a delay in bringing the application where the delay is significant; and (5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end.</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 judgment in four related cases, [http://canlii.ca/t/1p0tv ''D.B.S. v. S.R.G.'', ''L.J.W. v. T.A.R.'', ''Henry v. Henry'' and ''Hiemstra v. Hiemstra''], 2006 SCC 37 and significantly clarified the law on retroactive child support. Where it changed the law, the changes were not 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 their income, using the tables attached to the Guidelines rather than budgets and the means and needs 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 their 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 their 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]

The above was last reviewed for legal accuracy by [[Bill Murphy-Dyson|William Murphy-Dyson]] and [[Inga Phillips]] June 14, 2019.

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Child Support Guidelines

2019-06-15T01:43:45Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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 that the party claiming child support, the ''recipient'', had 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. Now, 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 disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. 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, effective as of November 22, 2017.

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 (before tax) yearly 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 or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their 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 in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines 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, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

==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 lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, 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, the parents may also be required to cover their respective portions 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 in proportion to their incomes. 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 is 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, in addition to 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 to see if they will agree to share in the expense.

An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families. For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent) but that same $200.00 expense may be a special expense if only $500.00 per month Guideline support is being paid (and will therefore have to be shared between the parents).

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 necessary and reasonable according to the parties' financial resources. For lower income parents fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, if that daycare is incurred as a result of the parent’s employment, illness, disability or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music and art classes, swimming, 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.
*Private school fees.
*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.

====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 license 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 probably be considered a necessity.

===Sharing qualifying expenses===

Under s. 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally 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 sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes 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 contribution of a parent's new partner. Also see a case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==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' 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 their earnings to date, or if the party isn't working, then their 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, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, 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 social assistance 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 their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===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 their 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, if it was a one-time occurrence.

===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. 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 they earn, 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 is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their 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 their 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,
#the payor has hidden or appears to have hidden some of their income, and
#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.

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 or 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 they have if:

#the payor has quit a job in order to avoid paying child support,
#the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, and
#the payor has tried to reduce their 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. 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 their 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><tt>"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.</tt></blockquote>
<blockquote><tt>"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.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></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 they earn 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 hiring 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 payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are 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 basic 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. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

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 their income will be taken into consideration 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 $12,000 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 necessity and 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 financial contribution of their 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, who is 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 they have 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.

The deceased parent’s estate may, however, be liable for the children and a claim could be made against the estate under the ''Wills Estates and Succession Act'' but this is beyond the scope of this service.

==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, and adjusting child support accordingly, and 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, and adjusting child support accordingly, and 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 their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include the receiving spouse’s income (including spousal support if that is being paid) and the percentage contribution of each parent to special expenses and will also require both parents to exchange income information each year. Disclosure of income by both parents is also required in shared and split custody cases as well.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012, BCCA 367.

===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 thereafter 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 by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.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/fl-df/child-enfant/look-rech.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-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support

2019-06-15T01:43:21Z

Inga Phillips:

{{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 = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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]] (the 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 or agreements 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. The obligation to pay child support for adult children is also discussed.

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 as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

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 virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain 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 November 22, 2017. For most people, the changes resulted in a small 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 priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

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

a) the parents (or one parent and one step-parent) are or have been legally married;

b) at least one of the parents or a step-parent have lived in the province continuously for at least one year immediately before the court action is started.

Divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or 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 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 (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents 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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

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

Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===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 (child support is a kind of corollary relief)
*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 if they were in no particular relationship with each other at all but had a child together. 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. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

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 (there are some exceptions where child support for adult children is concerned).

*Child support obligations may end for an adult child (but only if the parents agree or a court so orders) if the adult child unilaterally without good reason stops having a meaningful relationship with the parent who pays support. See the case of Farden v. Farden http://canlii.ca/t/1dk6h
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their 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: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*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.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*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 their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===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, 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 centered 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 the other parent 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 their 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.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See Family Maintenance Enforcement Act, Section 26.

===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 their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

===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?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

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. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which 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, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in 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 their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, 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 say 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 stop 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 their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===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. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they 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 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/fl-df/enforce-execution/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:
* Canada – all of the provinces and territories;
* United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
* Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
* Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
* Caribbean – Barbados and its Dependencies;
* Africa – South Africa, Zimbabwe; and
* Asia – Hong Kong, Republic of Singapore

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 their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

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

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

===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 or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $12,100 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.

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 pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their 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 their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see S.3 (1)(l).

===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 but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under 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 a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

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:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

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/8qx3 Limitation Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services 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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support Arrears

2019-06-15T01:41:19Z

Inga Phillips:

Child Support

2019-06-15T01:33:30Z

Inga Phillips:

{{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 = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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]] (the 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 or agreements 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. The obligation to pay child support for adult children is also discussed.

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 as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

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 virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain 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 November 22, 2017. For most people, the changes resulted in a small 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 priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

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

a) the parents (or one parent and one step-parent) are or have been legally married;

b) at least one of the parents or a step-parent have lived in the province continuously for at least one year immediately before the court action is started.

Divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or 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 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 (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents 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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

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

Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===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 (child support is a kind of corollary relief)
*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 if they were in no particular relationship with each other at all but had a child together. 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. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

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 (there are some exceptions where child support for adult children is concerned).

*Child support obligations may end for an adult child (but only if the parents agree or a court so orders) if the adult child unilaterally without good reason stops having a meaningful relationship with the parent who pays support. See the case of Farden v. Farden http://canlii.ca/t/1dk6h
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their 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: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*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.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*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 their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===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, 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 centered 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 the other parent 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 their 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.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See Family Maintenance Enforcement Act, Section 26.

===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 their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

===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?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

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. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which 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, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in 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 their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, 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 say 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 stop 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 their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===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. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they 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 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/fl-df/enforce-execution/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:
* Canada – all of the provinces and territories;
* United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
* Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
* Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
* Caribbean – Barbados and its Dependencies;
* Africa – South Africa, Zimbabwe; and
* Asia – Hong Kong, Republic of Singapore

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 their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

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

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

===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 or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $12,100 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.

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 pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their 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 their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see S.3 (1)(l).

===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 but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under 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 a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

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:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

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/8qx3 Limitation Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services 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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], May 18, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Child Support

2019-06-15T01:27:24Z

Inga Phillips:

{{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 = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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]] (the 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 or agreements 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. The obligation to pay child support for adult children is also discussed.

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 as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

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 virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain 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 November 22, 2017. For most people, the changes resulted in a small 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 priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

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

a) the parents (or one parent and one step-parent) are or have been legally married;

b) at least one of the parents or a step-parent have lived in the province continuously for at least one year immediately before the court action is started.

Divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or 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 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 (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents 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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

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

Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===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 (child support is a kind of corollary relief)
*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 if they were in no particular relationship with each other at all but had a child together. 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. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

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 (there are some exceptions where child support for adult children is concerned).

*Child support obligations may end for an adult child (but only if the parents agree or a court so orders) if the adult child unilaterally without good reason stops having a meaningful relationship with the parent who pays support. See the case of Farden v. Farden http://canlii.ca/t/1dk6h
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their 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: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*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.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*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 their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===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, 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 centered 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 the other parent 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 their 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.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See Family Maintenance Enforcement Act, Section 26.

===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 their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

===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?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

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. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which 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, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in 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 their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, 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 say 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 stop 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 their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===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. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they 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 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/fl-df/enforce-execution/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:
* Canada – all of the provinces and territories;
* United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
* Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
* Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
* Caribbean – Barbados and its Dependencies;
* Africa – South Africa, Zimbabwe; and
* Asia – Hong Kong, Republic of Singapore

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 their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

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

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

===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 or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $12,000 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.

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 pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their 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 their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see S.3 (1)(l).

===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 but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under 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 a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

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:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

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/8qx3 Limitation Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services 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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], May 18, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support

2019-06-15T01:18:57Z

Inga Phillips:

{{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 = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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]] (the 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 or agreements 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. The obligation to pay child support for adult children is also discussed.

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 as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

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 virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain 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 November 22, 2017. For most people, the changes resulted in a small 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 priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

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

a) the parents (or one parent and one step-parent) are or have been legally married;

b) at least one of the parents or a step-parent have lived in the province continuously for at least one year immediately before the court action is started.

Divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or 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 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 (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents 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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

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

Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===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 (child support is a kind of corollary relief)
*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 if they were in no particular relationship with each other at all but had a child together. 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. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

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 (there are some exceptions where child support for adult children is concerned)
*Child support obligations may end for an adult child if the adult child unilaterally without good reason stopped having a meaningful relationship with the parent who pays support). See the case of Farden v. Farden http://canlii.ca/t/1dk6h
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their 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: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*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.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*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 their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===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, 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 centered 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 the other parent 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 their 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.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See Family Maintenance Enforcement Act, Section 26.

===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 their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

===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?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

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. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which 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, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in 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 their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, 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 say 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 stop 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 their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===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. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they 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 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/fl-df/enforce-execution/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:
* Canada – all of the provinces and territories;
* United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
* Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
* Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
* Caribbean – Barbados and its Dependencies;
* Africa – South Africa, Zimbabwe; and
* Asia – Hong Kong, Republic of Singapore

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 their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

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

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

===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 or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $12,000 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.

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 pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their 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 their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see S.3 (1)(l).

===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 but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under 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 a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

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:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

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/8qx3 Limitation Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services 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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], May 18, 2019}}

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[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2019-06-15T01:16:32Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing

'''Income Tax and Child Tax Benefits'''

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only says that one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.

== Other Arrangements for the Children's Direct or Indirect Benefit ==

Section 11(1) (b) of the ''Divorce Act'' requires a judge to be satisfied that reasonable arrangements have been made for the support of the children of the marriage before signing off on the divorce. This usually requires that the ''Child Support Guideline amount of child support be paid.

However, Section 15.1 (5) of the ''Divorce Act'' allows the court to order a different amount of child support or accept an agreement between the parents and give them the divorce, but this is unusual, and the parents must show that they made reasonable financial arrangements for the children. An example would be where the parents decide that one parent takes less than half of the value of the house and gives it to the other parent who continues to live in the house with the children. This is unusual, and will probably require the help of a lawyer.


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], June 14, 2019}}

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[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2019-06-15T01:15:04Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing

'''Income Tax and Child Tax Benefits'''

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only says that one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.

== Other Arrangements for the Children's Direct or Indirect Benefit ==

Section 11(1) (b) of the ''Divorce Act'' requires a judge to be satisfied that reasonable arrangements have been made for the support of the children of the marriage before signing off on the divorce. This usually requires that the ''Child Support Guideline amount of child support be paid.

However, Section 15.1 (5) of the ''Divorce Act'' allows the court to order a different amount of child support or accept an agreement between the parents and give them the divorce, but this is unusual, and the parents must show that they made reasonable financial arrangements for the children. An example would be where the parents decide that one parent takes less than half of the value of the house and gives it to the other parent who continues to live in the house with the children. This is unusual, and will probably require the help of a lawyer.


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2019-06-15T01:14:17Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing

'''Income Tax and Child Tax Benefits'''

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only says that one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.

== Other Arrangements for the Children's Direct or Indirect Benefit ==

Section 11(1) (b) of the ''Divorce Act'' requires a judge to be satisfied that reasonable arrangements have been made for the support of the children of the marriage before signing off on the divorce. This usually requires that the ''Child Support Guideline amount of child support be paid.

However, Section 15.1 (5) of the ''Divorce Act'' allows the court to order a different amount of child support or accept an agreement between the parents and give them the divorce but this is unusual, and the parents must show that they made reasonable financial arrangements for the children. An example would be where the parents decide that one parent takes less than half of the value of the house and gives it to the other parent who continues to live in the house with the children. This is unusual, and will probably require the help of a lawyer.


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

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[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2019-06-15T01:05:17Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing

'''Income Tax and Child Tax Benefits'''

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only says that one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.

== Other Arrangements for the Children's Direct or Indirect Benefit ==


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2019-06-15T01:03:00Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing

'''Income Tax and Child Tax Benefits'''

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only says that one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2019-06-15T01:01:47Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing

'''Income Tax and Child Tax Benefits'''

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

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[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2019-06-15T01:00:25Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing

''''''Income Tax and Child Tax Benefits''''''

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2019-06-15T01:00:03Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing

''''''Income Tax and Child Tax Benefits''''''
=== Heading text ===

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

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[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2019-06-15T00:59:18Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

<big>'''Income Tax and Child Tax Benefits'''</big>

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

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[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2019-06-15T00:58:24Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

'''Income Tax and Child Tax BenefitsBold text'''

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Exceptions to the Child Support Guidelines

2019-06-15T00:56:56Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{LSSbadge
| resourcetype = a fact sheet on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Child_support.php Child support]''', including discussion of '''[http://www.familylaw.lss.bc.ca/resources/fact_sheets/child_support.php#TableAmntsDontApply "When the table amounts don't apply"]
}}The court has a limited ability to make orders for child support in amounts different than what would normally be required by the [[Child Support Guidelines]] tables.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

This section talks about the most common exceptions to the Guidelines tables:
# where the payor earns more than $150,000 per year;
# where the parents have split or shared custody of the children;
# where a minor child has become financially independent;
# and where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.

==Payors with incomes higher than $150,000==

The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide formulas to calculate the amount of child support payable.

However, for payors with very high incomes, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas:

<blockquote><tt>Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount determined under section 3; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) if the court considers that amount to be inappropriate,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to 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; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) the amount, if any, determined under section 7.</tt></blockquote></blockquote></blockquote>

Before departing from the Guidelines formulas under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

#the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

==Split custody and shared custody==

The fundamental purpose of child support is to help cover some of the expenses paid by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules.

===Split custody===

Section 8 of the Guidelines applies to split custody situations. S. 8 states that:

<blockquote><tt>8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.</tt></blockquote>

Where the primary residence of the children is split between the parents or guardians, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying the ''set-off'' amount of child support.

===Shared custody===

S.9 of the Guidelines applies to shared custody situations. S.9 states that:
<blockquote><tt>9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account</tt></blockquote>
<blockquote><blockquote><tt>(a) the amounts set out in the applicable tables for each of the spouses;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the increased costs of shared custody arrangements; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote>

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the time. The two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.

====Counting time====

Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:

*If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
*Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
*The time the children are in school or in daycare will be credited to the parent who has a right to parenting time of the children during that time, on the principle that this person is the parent who would have to care for children on a professional development day or attend the school or daycare in the event of an illness or an emergency.
*If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes, and the other parent’s time starts, and credit will be divided accordingly.

In the case of ''[http://canlii.ca/t/g6rr2 C.M.B. v. B.D.G.]'', 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

====Calculating support====

Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

<blockquote>
[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons.
First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see ''Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report'', at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the ''total cost'' of raising children in shared custody situations may be greater than in situations where there is sole custody: ''Slade v. Slade'', at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, ''all'' of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally.
Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.
</blockquote>

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general the set-off calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of [http://canlii.ca/t/gsp1w ''B.P.E. v. A.E.''], 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

:'''Example:'''
:Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

INCOME TAX AND CHILD TAX BENEFITS

In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split custody" or "shared custody" situations, an agreement or court order should specify what child support is to be paid by each parent to the other. If the agreement or court order only one parent will pay the set-off amount, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in shared parenting situation.

==Independent minor children==

Eligibility for child support under both the ''[[Family Law Act]]'' and the ''[[Divorce Act]]'' is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.

If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when:

#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
#a child has moved out from their parents' home and refuses to return, or
#a child lives on their own, maintains a job, and pays their own bills without relying on money from their parents.

Section 147(1) of the ''[[Family Law Act]]'' say that:

<blockquote><tt>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>

A person can be a ''spouse'' under the ''Family Law Act'' if they:

#are married,
#have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

==Undue hardship==

Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is different (usually less) than would be required by the Guidelines tables where a person would suffer ''undue hardship'' if the Guidelines table amount of child support were paid.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to ''[http://canlii.ca/t/1f0r2 Van Gool v. Van Gool ]'', 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BCSC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:

<blockquote><tt>(1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.</tt></blockquote>
<blockquote><tt>(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the spouse has unusually high expenses in relation to exercising access to a child;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) under the age of majority, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability...</tt></blockquote></blockquote>

Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

#under s. 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent, and
#the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

If both these steps have been met, the court will then determine what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.


==Resources and links==

===Legislation===

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

===Links===

* [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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

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How Do I Get Out of Paying Child Support?

2019-05-18T23:33:49Z

Inga Phillips:

{{JP Boyd on Family Law How Do I TOC|expanded=obligation}}

The answer is pretty simple most of the time: ''you don't''.

==Biological parents==

The law in Canada is that a biological parent must pay child support when the child lives with the other parent most of the time.

Since child support is the right of the child, not the right of the parent, neither parent has the right or ability to bargain away child support in exchange for giving up, for example, the right to seek custody of or access to the child. Agreements like that are not upheld by the courts. It is the court's duty to ensure that after separation parents make appropriate financial arrangements for the children.

The duty to pay child support stems from the simple fact that both parents contributed some of their genes to make a baby, and that's something you just can't get out of. It's a biological fact that has nothing to do with the ages of the parents, their marital status, whether they lived together or not, or whether both parents have maintained or want to maintain a relationship with the child. There are only two exceptions: if the child is born as a result of assisted reproduction - in that case, the donor is not, by reason only of the donation, the child's parent, and adoption of the child.

There are only a few ways to get out of an obligation to pay child support:

*the child lives with you for the majority of the time, in which case the other parent will be required to pay child support to you,
*if you give the child up for adoption, in which case, following the adoption, you will will not have any obligations at all toward the child; and
*if you and the other parent have equal or close to equal parenting time with the child and both of you make the same income.

==Stepparents==

The ''Divorce Act'' and the ''Family Law Act'' both say that stepparents may be required to pay child support, but only if the parent and the stepparent separate.

Under the ''Divorce Act'', this means someone who married a parent.

Under the ''Family Law Act'', this means the guardian of a child and a person who was the married spouse or unmarried spouse of a parent and contributed to the support of that parent's child for at least one year.

The nice thing about being a stepparent is that the other biological parent's obligation to pay child support can be taken into account when the amount of the stepparent's child support payments is being figured out, which usually means that support will be paid in an amount less than what the Child Support Guidelines require.

You can find out more about the obligations of stepparents to pay child support in the chapter [[Child Support]].

{{REVIEWED | reviewer = [[Inga Phillips]], May 18, 2019}}

{{JP Boyd on Family Law Navbox|type=how}}

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[[Category:Avoiding an Obligation]]
[[Category:JP Boyd on Family Law]]

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How Do I Get Out of Paying Child Support?

2019-05-18T23:31:53Z

Inga Phillips:

{{JP Boyd on Family Law How Do I TOC|expanded=obligation}}

The answer is pretty simple most of the time: ''you don't''.

==Biological parents==

The law in Canada is that a biological parent must pay child support when the child lives with the other parent most of the time.

Since child support is the right of the child, not the right of the parent, neither parent has the right or ability to bargain away child support in exchange for giving up, for example, the right to seek custody of or access to the child. Agreements like that are not upheld by the courts. It is the court's duty to ensure that after separation parents make appropriate financial arrangements for the children.

The duty to pay child support stems from the simple fact that both parents contributed some of their genes to make a baby, and that's something you just can't get out of. It's a biological fact that has nothing to do with the ages of the parents, their marital status, whether they lived together or not, or whether both parents have maintained or want to maintain a relationship with the child. There are only two exceptions: if the child is born as a result of assisted reproduction - in that case, the donor is not, by reason only of the donation, the child's parent, and adoption of the child.

There are only a few ways to get out of an obligation to pay child support:

*the child lives with you for the majority of the time, in which case the other parent will be required to pay child support to you,
*if you give the child up for adoption, in which case, following the adoption, you will will not have any obligations at all toward the child; and
*if you and the other parent have equal or close to equal parenting time with the child and both of you make the same income.

==Stepparents==

The ''Divorce Act'' and the ''Family Law Act'' both say that stepparents can be required to pay child support.

Under the ''Divorce Act'', this means someone who married a parent.

Under the ''Family Law Act'', this means the guardian of a child and a person who was the married spouse or unmarried spouse of a parent and contributed to the support of the parent's child for at least one year.

The nice thing about being a stepparent is that the other biological parent's obligation to pay child support can be taken into account when the amount of the stepparent's child support payments is being figured out, which usually means that support will be paid in an amount less than what the Child Support Guidelines require.

You can find out more about the obligations of stepparents to pay child support in the chapter [[Child Support]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

{{JP Boyd on Family Law Navbox|type=how}}

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[[Category:Avoiding an Obligation]]
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How Do I Get Out of Paying Child Support?

2019-05-18T23:26:50Z

Inga Phillips:

{{JP Boyd on Family Law How Do I TOC|expanded=obligation}}

The answer is pretty simple most of the time: ''you don't''.

==Biological parents==

The law in Canada is that a biological parent must pay child support when the child lives with the other parent most of the time.

Since child support is the right of the child, not the right of the parent, neither parent has the right or ability to bargain away child support in exchange for giving up, for example, the right to seek custody of or access to the child. Agreements like that are never upheld by the courts. It is the court's duty to ensure that after separation parents make appropriate financial arrangements for the children.

The duty to pay child support stems from the simple fact that both parents contributed some of their genes to make a baby, and that's something you just can't get out of. It's a biological fact that has nothing to do with the ages of the parents, their marital status, or whether both parents have maintained or want to maintain a relationship with the child. There are only two exceptions: if the child is born as a result of assisted reproduction - in that case, the donor is not, by reason only of the donation, the child's parent, and adoption of the child.

So - there are only a few limited ways to get out of an obligation to pay child support:

*the child lives with you for the majority of the time, in which case the other parent will be required to pay child support to you, or
*if you give the child up for adoption, in which case, following the adoption, you will cease to have any obligations at all toward the child.

==Stepparents==

The ''Divorce Act'' and the ''Family Law Act'' both say that stepparents can be required to pay child support.

Under the ''Divorce Act'', this means someone who married a parent.

Under the ''Family Law Act'', this means the guardian of a child and a person who was the married spouse or unmarried spouse of a parent and contributed to the support of the parent's child for at least one year.

The nice thing about being a stepparent is that the other biological parent's obligation to pay child support can be taken into account when the amount of the stepparent's child support payments is being figured out, which usually means that support will be paid in an amount less than what the Child Support Guidelines require.

You can find out more about the obligations of stepparents to pay child support in the chapter [[Child Support]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

{{JP Boyd on Family Law Navbox|type=how}}

[[Category:How Do I?|G]]
[[Category:Avoiding an Obligation]]
[[Category:JP Boyd on Family Law]]

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How Do I Get Out of Paying Child Support?

2019-05-18T23:23:09Z

Inga Phillips:

{{JP Boyd on Family Law How Do I TOC|expanded=obligation}}

The answer is pretty simple most of the time: ''you don't''.

==Biological parents==

The law in Canada is that a biological parent must pay child support when the child lives with the other parent most of the time. End of story.

Since child support is the right of the child, not the right of the parent, neither parent has the right or ability to bargain away child support in exchange for giving up, for example, the right to seek custody of or access to the child. Agreements like that are never upheld by the courts.

The duty to pay child support stems from the simple fact that both parents contributed some of their genes to make a baby, and that's something you just can't get out of. It's a biological fact that has nothing to do with the ages of the parents, their marital status, or whether both parents have maintained or want to maintain a relationship with the child. There are only two exceptions: if the child is born as a result of assisted reproduction - in that case, the donor is not, by reason only of the donation, the child's parent, and adoption of the child.

So - the only two ways to get out of an obligation to pay child support are if:

*the child lives with you for the majority of the time, in which case the other parent will be required to pay child support to you, or
*if you give the child up for adoption, in which case, following the adoption, you will cease to have any obligations at all toward the child.

==Stepparents==

The ''Divorce Act'' and the ''Family Law Act'' both say that stepparents can be required to pay child support.

Under the ''Divorce Act'', this means someone who married a parent.

Under the ''Family Law Act'', this means the guardian of a child and a person who was the married spouse or unmarried spouse of a parent and contributed to the support of the parent's child for at least one year.

The nice thing about being a stepparent is that the other biological parent's obligation to pay child support can be taken into account when the amount of the stepparent's child support payments is being figured out, which usually means that support will be paid in an amount less than what the Child Support Guidelines require.

You can find out more about the obligations of stepparents to pay child support in the chapter [[Child Support]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

{{JP Boyd on Family Law Navbox|type=how}}

[[Category:How Do I?|G]]
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Child Support Arrears

2019-05-18T22:52:13Z

Inga Phillips:

Child Support Arrears

2019-05-18T22:51:50Z

Inga Phillips:

Child Support Arrears

2019-05-18T22:46:21Z

Inga Phillips:

Child Support Arrears

2019-05-18T22:45:44Z

Inga Phillips:

Changing Family Law Orders, Awards and Agreements Involving Child Support

2019-05-18T22:41:28Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] 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, provided 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 jurisdiction. 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 when the court proceeding to vary the order is started, or if both parties agree, 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 in part:

<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 usually be made according to the Child Support Guidelines.
*The court may make an order for support different from the Guidelines if there exists an order or agreement with special provisions for the direct or indirect benefit 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 or a commissioner for taking affidavits:

*The payor must produce a financial statement dealing with their 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, or a claim for undue hardship, or 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. Links to and examples of Supreme Court forms are available in 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==

In British Columbia, the Federal Child Support Guidelines are adopted by regulation and the ''[[Family Law Act]]'' provides for variation of child support in virtually the same way as the ''[[Divorce Act]]'.

Under s. 148(3), the court may set aside an agreement with respect to 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===

The law is the same with respect to financial statements whether the application to vary child support is brought under the ''[[Family Law Act]]'' or the ''[[Divorce Act]]''. See Rule 5-1 of the Supreme Court Family Rules which sets out the requirements for financial disclosure in Supreme Court Family Proceedings, and Rule 4 of Provincial Court (Family) Rules for Provincial Court Family Proceedings.

===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 Child Support Guidelines came into effect on May 1, 1997. Child support orders or agreements before that date allowed child support payments to be tax-deductible for the payor and taxable for the recipient unless and until varied. It is doubtful that any such agreements or orders are still in effect but, if you have one, consult a lawyer.

==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 other reasons why it can be hard to change an order made outside of British Columbia, but that's the substance 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 where the original order was made, 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 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 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, Swiss Confederation, Northern Ireland, the United Kingdom, the United States of America and its protectorates, 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 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 to 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 more information and 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 take effect retroactively, i.e. 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 retroactivity 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, at paragraph 66, the court set out factors to consider in deciding if a retroactive order for support is appropriate:

<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: (1) the need on the part of the child and a corresponding ability to pay on the part of the non-custodial parent; (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; (3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses; (4) an excuse for a delay in bringing the application where the delay is significant; and (5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end.</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 judgment in four related cases, [http://canlii.ca/t/1p0tv ''D.B.S. v. S.R.G.'', ''L.J.W. v. T.A.R.'', ''Henry v. Henry'' and ''Hiemstra v. Hiemstra''], 2006 SCC 37 and significantly clarified the law on retroactive child support. Where it changed the law, the changes were not 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 their income, using the tables attached to the Guidelines rather than budgets and the means and needs 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 their 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 their 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]

The above was last reviewed for legal accuracy by [[Bill Murphy-Dyson|William Murphy-Dyson]] and [[Inga Phillips]] May 18, 2019.

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2019-05-18T22:39:38Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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 that the party claiming child support, the ''recipient'', had 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. Now, 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 disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. 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, effective as of November 22, 2017.

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 (before tax) yearly 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 or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their 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 in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines 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, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

==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 lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, 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, the parents may also be required to cover their respective portions 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 in proportion to their incomes. 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 is 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, in addition to 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 to see if they will agree to share in the expense.

An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families. For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent) but that same $200.00 expense may be a special expense if only $500.00 per month Guideline support is being paid (and will therefore have to be shared between the parents).

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 necessary and reasonable according to the parties' financial resources. For lower income parents fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, if that daycare is incurred as a result of the parent’s employment, illness, disability or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music and art classes, swimming, 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.
*Private school fees.
*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.

====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 license 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 probably be considered a necessity.

===Sharing qualifying expenses===

Under s. 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally 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 sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes 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 contribution of a parent's new partner. Also see a case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==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' 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 their earnings to date, or if the party isn't working, then their 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, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, 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 social assistance 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 their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===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 their 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, if it was a one-time occurrence.

===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. 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 they earn, 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 is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their 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 their 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,
#the payor has hidden or appears to have hidden some of their income, and
#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.

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 or 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 they have if:

#the payor has quit a job in order to avoid paying child support,
#the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, and
#the payor has tried to reduce their 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. 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 their 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><tt>"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.</tt></blockquote>
<blockquote><tt>"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.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></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 they earn 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 hiring 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 payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are 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 basic 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. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

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 their income will be taken into consideration 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 $12,000 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 necessity and 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 financial contribution of their 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, who is 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 they have 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.

The deceased parent’s estate may, however, be liable for the children and a claim could be made against the estate under the ''Wills Estates and Succession Act'' but this is beyond the scope of this service.

==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, and adjusting child support accordingly, and 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, and adjusting child support accordingly, and 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 their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include the receiving spouse’s income (including spousal support if that is being paid) and the percentage contribution of each parent to special expenses and will also require both parents to exchange income information each year. Disclosure of income by both parents is also required in shared and split custody cases as well.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012, BCCA 367.

===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 thereafter 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 by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.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/fl-df/child-enfant/look-rech.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-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], May 18, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2019-05-18T22:38:11Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
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{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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 that the party claiming child support, the ''recipient'', had 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. Now, 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 disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. 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, effective as of November 22, 2017.

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 (before tax) yearly 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 or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their 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 in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines 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, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

==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 lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, 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, the parents may also be required to cover their respective portions 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 in proportion to their incomes. 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 is 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, in addition to 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 to see if they will agree to share in the expense.

An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families. For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent) but that same $200.00 expense may be a special expense if only $500.00 per month Guideline support is being paid (and will therefore have to be shared between the parents).

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 necessary and reasonable according to the parties' financial resources. For lower income parents fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, if that daycare is incurred as a result of the parent’s employment, illness, disability or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music and art classes, swimming, 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.
*Private school fees.
*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.

====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 license 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 probably be considered a necessity.

===Sharing qualifying expenses===

Under s. 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally 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 sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes 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 contribution of a parent's new partner. Also see a case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==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' 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 their earnings to date, or if the party isn't working, then their 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, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, 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 social assistance 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 their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===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 their 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, if it was a one-time occurrence.

===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. 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 they earn, 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 is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their 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 their 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,
#the payor has hidden or appears to have hidden some of their income, and
#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.

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 or 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 they have if:

#the payor has quit a job in order to avoid paying child support,
#the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, and
#the payor has tried to reduce their 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. 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 their 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><tt>"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.</tt></blockquote>
<blockquote><tt>"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.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></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 they earn 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 hiring 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 payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are 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 basic 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. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

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 their income will be taken into consideration 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 $12,000 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 necessity and 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 financial contribution of their 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, who is 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 they have 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.

The deceased parent’s estate may, however, be liable for the children and a claim could be made against the estate under the ''Wills Estates and Succession Act'' but this is beyond the scope of this service.

==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, and adjusting child support accordingly, and 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, and adjusting child support accordingly, and 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 their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include the receiving spouse’s income (including spousal support if that is being paid) and the percentage contribution of each parent to special expenses and will also require both parents to exchange income information each year. Disclosure of income by both parents is also required in shared and split custody cases as well.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012, BCCA 367.

===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 thereafter 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 by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.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/fl-df/child-enfant/look-rech.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-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2019-05-18T22:37:06Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
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{{Clicklawbadge
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| link = [https://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 that the party claiming child support, the ''recipient'', had 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. Now, 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 disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. 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, effective as of November 22, 2017.

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 (before tax) yearly 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 or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their 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 in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines 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, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

==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 lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, 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, the parents may also be required to cover their respective portions 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 in proportion to their incomes. 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 is 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, in addition to 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 to see if they will agree to share in the expense.

An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families. For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent) but that same $200.00 expense may be a special expense if only $500.00 per month Guideline support is being paid (and will therefore have to be shared between the parents).

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 necessary and reasonable according to the parties' financial resources. For lower income parents fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, if that daycare is incurred as a result of the parent’s employment, illness, disability or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music and art classes, swimming, 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.
*Private school fees.
*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.

====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 license 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 probably be considered a necessity.

===Sharing qualifying expenses===

Under s. 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally 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 sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes 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 contribution of a parent's new partner. Also see a case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==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' 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 their earnings to date, or if the party isn't working, then their 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, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, 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 social assistance 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 their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===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 their 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, if it was a one-time occurrence.

===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. 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 they earn, 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 is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their 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 their 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,
#the payor has hidden or appears to have hidden some of their income, and
#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.

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 or 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 they have if:

#the payor has quit a job in order to avoid paying child support,
#the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, and
#the payor has tried to reduce their 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. 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 their 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><tt>"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.</tt></blockquote>
<blockquote><tt>"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.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></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 they earn 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 hiring 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 payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are 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 basic 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. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

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 their income will be taken into consideration 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 $10,820 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 necessity and 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 financial contribution of their 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, who is 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 they have 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.

The deceased parent’s estate may, however, be liable for the children and a claim could be made against the estate under the ''Wills Estates and Succession Act'' but this is beyond the scope of this service.

==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, and adjusting child support accordingly, and 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, and adjusting child support accordingly, and 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 their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include the receiving spouse’s income (including spousal support if that is being paid) and the percentage contribution of each parent to special expenses and will also require both parents to exchange income information each year. Disclosure of income by both parents is also required in shared and split custody cases as well.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012, BCCA 367.

===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 thereafter 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 by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.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/fl-df/child-enfant/look-rech.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-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2019-05-18T22:35:46Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
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{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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 that the party claiming child support, the ''recipient'', had 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. Now, 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 disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. 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, effective as of November 22, 2017.

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 (before tax) yearly 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 or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their 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 in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines 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, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

==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 lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, 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, the parents may also be required to cover their respective portions 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 in proportion to their incomes. 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 is 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, in addition to 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 to see if they will agree to share in the expense.

An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families. For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent) but that same $200.00 expense may be a special expense if only $500.00 per month Guideline support is being paid (and will therefore have to be shared between the parents).

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 necessary and reasonable according to the parties' financial resources. For lower income parents fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, if that daycare is incurred as a result of the parent’s employment, illness, disability or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music and art classes, swimming, 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.
*Private school fees.
*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.

====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 license 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 probably be considered a necessity.

===Sharing qualifying expenses===

Under s. 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally 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 sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes 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 contribution of a parent's new partner. Also see a case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==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' 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 their earnings to date, or if the party isn't working, then their 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, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, 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 social assistance 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 their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===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 their 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, if it was a one-time occurrence.

===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. 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 they earn, 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 is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their 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 their 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,
#the payor has hidden or appears to have hidden some of their income, and
#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.

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 or 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 they have if:

#the payor has quit a job in order to avoid paying child support,
#the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, and
#the payor has tried to reduce their 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. 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 their 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><tt>"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.</tt></blockquote>
<blockquote><tt>"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.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></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 they earn 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 payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are 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 basic 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. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

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 their income will be taken into consideration 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 $10,820 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 necessity and 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 financial contribution of their 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, who is 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 they have 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.

The deceased parent’s estate may, however, be liable for the children and a claim could be made against the estate under the ''Wills Estates and Succession Act'' but this is beyond the scope of this service.

==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, and adjusting child support accordingly, and 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, and adjusting child support accordingly, and 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 their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include the receiving spouse’s income (including spousal support if that is being paid) and the percentage contribution of each parent to special expenses and will also require both parents to exchange income information each year. Disclosure of income by both parents is also required in shared and split custody cases as well.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012, BCCA 367.

===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 thereafter 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 by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.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/fl-df/child-enfant/look-rech.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-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2019-05-18T22:30:59Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
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{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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 that the party claiming child support, the ''recipient'', had 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. Now, 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 disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. 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, effective as of November 22, 2017.

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 (before tax) yearly 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 or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their 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 in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines 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, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

==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 lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, 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, the parents may also be required to cover their respective portions 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 in proportion to their incomes. 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 is 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, in addition to 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.

An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families. For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense to get shared but that same $200.00 expense may be a special expense if only $100.00 per month Guideline support is being paid.

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 necessary and reasonable according to the parties' means. For lower income parents fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, provided that daycare is incurred as a result of the parent’s employment, illness, disability or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music and art classes, swimming, 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.
*Private school fees.
*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.

====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 license 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 probably be considered a necessity.

===Sharing qualifying expenses===

Under s. 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally 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 sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes 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 contribution of a parent's new partner. Also see a case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==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' 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 their earnings to date, or if the party isn't working, then their 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, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, 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 social assistance 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 their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===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 their 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, if it was a one-time occurrence.

===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. 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 they earn, 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 is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their 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 their 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,
#the payor has hidden or appears to have hidden some of their income, and
#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.

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 or 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 they have if:

#the payor has quit a job in order to avoid paying child support,
#the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, and
#the payor has tried to reduce their 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. 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 their 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><tt>"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.</tt></blockquote>
<blockquote><tt>"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.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></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 they earn 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 payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are 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 basic 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. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

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 their income will be taken into consideration 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 $10,820 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 necessity and 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 financial contribution of their 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, who is 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 they have 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.

The deceased parent’s estate may, however, be liable for the children and a claim could be made against the estate under the ''Wills Estates and Succession Act'' but this is beyond the scope of this service.

==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, and adjusting child support accordingly, and 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, and adjusting child support accordingly, and 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 their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include the receiving spouse’s income (including spousal support if that is being paid) and the percentage contribution of each parent to special expenses and will also require both parents to exchange income information each year. Disclosure of income by both parents is also required in shared and split custody cases as well.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012, BCCA 367.

===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 thereafter 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 by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.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/fl-df/child-enfant/look-rech.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-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

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[[Category:JP Boyd on Family Law]]

Child Support Guidelines

2019-05-18T22:29:11Z

Inga Phillips:

{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
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{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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 that the party claiming child support, the ''recipient'', had 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. Now, 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 disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about the income of the payor or child support for children over 19.

The Guidelines tables were most recently adjusted on November 22, 2017. 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, effective as of November 22, 2017.

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 (before tax) yearly 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 or the agreement so that the amount of child support reflects the payor's current income. The payor would make the application if their 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 in the court order or agreement that requires both parents to regularly exchange income information, usually every year after taxes have been filed, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines 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, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

==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 lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, 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, the parents may also be required to cover their respective portions 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 is 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, in addition to 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.

An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families. For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense to get shared but that same $200.00 expense may be a special expense if only $100.00 per month Guideline support is being paid.

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 necessary and reasonable according to the parties' means. For lower income parents fewer expenses will be considered reasonable.

*Daycare will almost always be considered necessary and reasonable, provided that daycare is incurred as a result of the parent’s employment, illness, disability or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

*Cosmetic orthodontic work.
*Dance, music and art classes, swimming, 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.
*Private school fees.
*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.

====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 license 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 probably be considered a necessity.

===Sharing qualifying expenses===

Under s. 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally 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 sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes 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 contribution of a parent's new partner. Also see a case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.

==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' 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 their earnings to date, or if the party isn't working, then their 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, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, 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 social assistance 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 their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

===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 their 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, if it was a one-time occurrence.

===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. 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 they earn, 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 is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
#the payor has quit or been fired from their 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 their 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,
#the payor has hidden or appears to have hidden some of their income, and
#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.

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 or 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 they have if:

#the payor has quit a job in order to avoid paying child support,
#the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, and
#the payor has tried to reduce their 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. 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 their 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><tt>"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.</tt></blockquote>
<blockquote><tt>"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.</tt></blockquote>
<blockquote><tt>"4. Persistence in [poorly paid] employment may entitle the court to impute income.</tt></blockquote>
<blockquote><tt>"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.</tt></blockquote>
<blockquote><tt>"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."</tt></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 they earn 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 payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are 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 basic 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. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

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 their income will be taken into consideration 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 $10,820 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 necessity and 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 financial contribution of their 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, who is 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 they have 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.

The deceased parent’s estate may, however, be liable for the children and a claim could be made against the estate under the ''Wills Estates and Succession Act'' but this is beyond the scope of this service.

==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, and adjusting child support accordingly, and 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, and adjusting child support accordingly, and 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 their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include the receiving spouse’s income (including spousal support if that is being paid) and the percentage contribution of each parent to special expenses and will also require both parents to exchange income information each year. Disclosure of income by both parents is also required in shared and split custody cases as well.

It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application. For more information, see the case of [http://canlii.ca/t/fspd1 ''Yu v. Jordan''], 2012, BCCA 367.

===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 thereafter 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 by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the ''Family Law Act''.</tt></blockquote>

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

==Child support tables and calculators==

The [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-11.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/fl-df/child-enfant/look-rech.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-11.html#h-15 Child Support Guidelines Tables for British Columbia]
* [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

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[[Category:JP Boyd on Family Law]]

Child Support Arrears

2019-05-18T22:22:57Z

Inga Phillips:

Child Support

2019-05-18T22:21:37Z

Inga Phillips:

{{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 = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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]] (the 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 or agreements 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. The obligation to pay child support for adult children is also discussed.

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 as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

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 virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain 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 November 22, 2017. For most people, the changes resulted in a small 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 priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

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

a) the parents (or one parent and one step-parent) are or have been legally married;

b) at least one of the parents or a step=parent have lived in the province continuously for at least one year immediately before the court action is started.

Divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or 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 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 (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents 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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

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

Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===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 (child support is a kind of corollary relief)
*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 if they were in no particular relationship with each other at all but had a child together. 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. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

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 (there are some exceptions where child support for adult children is concerned)
*Child support obligations may end for an adult child if the adult child unilaterally without good reason stopped having a meaningful relationship with the parent who pays support). See the case of Farden v. Farden http://canlii.ca/t/1dk6h
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their 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: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*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.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*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 their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===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, 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 centered 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 the other parent 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 their 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.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See Family Maintenance Enforcement Act, Section 26.

===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 their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

===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?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

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. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which 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, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in 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 their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, 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 say 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 stop 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 their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===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. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they 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 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/fl-df/enforce-execution/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:
* Canada – all of the provinces and territories;
* United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
* Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
* Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
* Caribbean – Barbados and its Dependencies;
* Africa – South Africa, Zimbabwe; and
* Asia – Hong Kong, Republic of Singapore

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 their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

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

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

===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 or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $12,000 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.

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 pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their 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 their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see S.3 (1)(l).

===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 but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under 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 a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

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:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

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/8qx3 Limitation Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services 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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], May 18, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Child Support

2019-05-18T22:19:13Z

Inga Phillips:

{{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 = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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]] (the 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 or agreements 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. The obligation to pay child support for adult children is also discussed.

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 as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

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 virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain 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 November 22, 2017. For most people, the changes resulted in a small 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 priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

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

a) the parents (or one parent and one step-parent) are or have been legally married;

b) at least one of the parents or a step=parent have lived in the province continuously for at least one year immediately before the court action is started.

Divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or 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 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 (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents 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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

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

Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===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 (child support is a kind of corollary relief)
*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 if they were in no particular relationship with each other at all but had a child together. 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. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

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 (there are some exceptions where child support for adult children is concerned)
*Child support obligations may end for an adult child if the adult child unilaterally without good reason stopped having a meaningful relationship with the parent who pays support). See the case of Farden v. Farden http://canlii.ca/t/1dk6h
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their 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: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*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.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*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 their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===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, 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 centered 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 the other parent 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 their 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.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See Family Maintenance Enforcement Act, Section 26.

===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 their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

===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?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

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. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which 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, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in 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 their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, 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 say 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 stop 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 their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===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. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they 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 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/fl-df/enforce-execution/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:
* Canada – all of the provinces and territories;
* United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
* Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
* Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
* Caribbean – Barbados and its Dependencies;
* Africa – South Africa, Zimbabwe; and
* Asia – Hong Kong, Republic of Singapore

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 their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

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

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

===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 or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $12,000 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.

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 pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their 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 their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see S.3 (1)(l).

For child support orders, there are additional ways to enforce child support that are not available for other orders. Under the "Family Maintenance Enforcement Act", the recipient can get a continuing garnishing order so that money is taken from the payer's income every payday. See Section 18 of the "Family Maintenance Enforcement Act".

===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 but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under 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 a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

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:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

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/8qx3 Limitation Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services 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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], May 18, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support

2019-05-18T22:14:55Z

Inga Phillips: /* Legislation */

{{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 = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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]] (the 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 or agreements 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. The obligation to pay child support for adult children is also discussed.

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 as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

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 virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain 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 November 22, 2017. For most people, the changes resulted in a small 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 priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

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

a) the parents (or one parent and one step-parent) are or have been legally married;

b) at least one of the parents or a step=parent have lived in the province continuously for at least one year immediately before the court action is started.

Divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or 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 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 (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents 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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

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

Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===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 (child support is a kind of corollary relief)
*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 if they were in no particular relationship with each other at all but had a child together. 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. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

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 (there are some exceptions where child support for adult children is concerned)
*Child support obligations may end for an adult child if the adult child unilaterally without good reason stopped having a meaningful relationship with the parent who pays support). See the case of Farden v. Farden http://canlii.ca/t/1dk6h
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their 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: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*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.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*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 their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===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, 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 centered 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 the other parent 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 their 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.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See Family Maintenance Enforcement Act, Section 26.

===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 their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

===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?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

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. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which 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, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in 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 their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, 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 say 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 stop 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 their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===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. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they 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 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/fl-df/enforce-execution/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:
* Canada – all of the provinces and territories;
* United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
* Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
* Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
* Caribbean – Barbados and its Dependencies;
* Africa – South Africa, Zimbabwe; and
* Asia – Hong Kong, Republic of Singapore

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 their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

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

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

===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 or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $12,000 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.

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 pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their 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 their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see S.3 (1)(l).

For child support orders, there are additional ways to enforce child support that are not available for other orders. Under the "Family Maintenance Enforcement Act", the recipient can get a continuing garnishing order so that money is taken from the payer's income every payday. See Section 18 of the "Family Maintenance Enforcement Act".

===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 but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under 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 a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

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:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

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/8qx3 Limitation Act]''
"Family Maintenance Enforcement Act" http://canlii.ca/t/840m

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services 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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], May 18, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Child Support

2019-05-18T22:13:30Z

Inga Phillips:

{{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 = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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]] (the 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 or agreements 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. The obligation to pay child support for adult children is also discussed.

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 as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

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 virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain 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 November 22, 2017. For most people, the changes resulted in a small 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 priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

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

a) the parents (or one parent and one step-parent) are or have been legally married;

b) at least one of the parents or a step=parent have lived in the province continuously for at least one year immediately before the court action is started.

Divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or 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 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 (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents 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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

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

Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===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 (child support is a kind of corollary relief)
*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 if they were in no particular relationship with each other at all but had a child together. 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. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

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 (there are some exceptions where child support for adult children is concerned)
*Child support obligations may end for an adult child if the adult child unilaterally without good reason stopped having a meaningful relationship with the parent who pays support). See the case of Farden v. Farden http://canlii.ca/t/1dk6h
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their 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: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*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.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*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 their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===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, 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 centered 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 the other parent 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 their 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.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See Family Maintenance Enforcement Act, Section 26.

===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 their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

===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?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

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. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which 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, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in 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 their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, 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 say 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 stop 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 their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===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. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they 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 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/fl-df/enforce-execution/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:
* Canada – all of the provinces and territories;
* United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
* Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
* Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
* Caribbean – Barbados and its Dependencies;
* Africa – South Africa, Zimbabwe; and
* Asia – Hong Kong, Republic of Singapore

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 their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

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

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

===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 or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $12,000 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.

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 pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their 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 their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see S.3 (1)(l).

For child support orders, there are additional ways to enforce child support that are not available for other orders. Under the "Family Maintenance Enforcement Act", the recipient can get a continuing garnishing order so that money is taken from the payer's income every payday. See Section 18 of the "Family Maintenance Enforcement Act".

===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 but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under 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 a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

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:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

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/8qx3 Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services 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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], May 18, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support

2019-05-18T22:09:27Z

Inga Phillips:

{{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 = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
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| resourcetype = more resources on 
| link = [https://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]] (the 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 or agreements 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. The obligation to pay child support for adult children is also discussed.

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 as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

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 virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain 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 November 22, 2017. For most people, the changes resulted in a small 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 priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

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

a) the parents (or one parent and one step-parent) are or have been legally married;

b) at least one of the parents or a step=parent have lived in the province continuously for at least one year immediately before the court action is started.

Divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or 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 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 (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents 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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

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

Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===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 (child support is a kind of corollary relief)
*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 if they were in no particular relationship with each other at all but had a child together. 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. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

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 (there are some exceptions where child support for adult children is concerned)
*Child support obligations may end for an adult child if the adult child unilaterally without good reason stopped having a meaningful relationship with the parent who pays support). See the case of Farden v. Farden http://canlii.ca/t/1dk6h
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their 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: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*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.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*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 their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===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, 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 centered 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 the other parent 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 their 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.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See Family Maintenance Enforcement Act, Section 26.

===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 their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

===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?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

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. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which 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, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in 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 their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, 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 say 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 stop 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 their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===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. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they 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 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/fl-df/enforce-execution/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:
* Canada – all of the provinces and territories;
* United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
* Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
* Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
* Caribbean – Barbados and its Dependencies;
* Africa – South Africa, Zimbabwe; and
* Asia – Hong Kong, Republic of Singapore

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 their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

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

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

===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 or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $12,000 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.

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 pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their 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 their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see S.3 (1)(l).

===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 but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under 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 a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

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:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

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/8qx3 Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services 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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], May 18, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support

2019-05-18T22:02:45Z

Inga Phillips:

{{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]]
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}}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]] (the 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 or agreements 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. The obligation to pay child support for adult children is also discussed.

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 as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

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 virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain 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 November 22, 2017. For most people, the changes resulted in a small 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 priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

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

a) the parents (or one parent and one step-parent) are or have been legally married;

b) at least one of the parents or a step=parent have lived in the province continuously for at least one year immediately before the court action is started.

Divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or 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 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 (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents 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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

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

Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===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 (child support is a kind of corollary relief)
*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 if they were in no particular relationship with each other at all but had a child together. 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. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

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 (there are some exceptions where child support for adult children is concerned)
*Child support obligations may end for an adult child if the adult child unilaterally without good reason stopped having a meaningful relationship with the parent who pays support). See the case of Farden v. Farden http://canlii.ca/t/1dk6h
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their 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: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*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.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*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 their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===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, 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 centered 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 the other parent 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 their 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.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See Family Maintenance Enforcement Act, Section 26.

===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 their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

===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?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

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. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which 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, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in 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 their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, 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 say 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 stop 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 their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===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. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they 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 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/fl-df/enforce-execution/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:
* Canada – all of the provinces and territories;
* United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
* Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
* Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
* Caribbean – Barbados and its Dependencies;
* Africa – South Africa, Zimbabwe; and
* Asia – Hong Kong, Republic of Singapore

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 their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

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

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependants when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

==Child support and social assistance==

When a parent who is entitled to receive child support goes on social assistance, the government agrees to provide support for that parent and their 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 support the child, as they have the legal obligation to do so, 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===

It used to be that child support paid to a recipient of social assistance was "clawed back" by the government. However, since September, 2015, those receiving social assistance or disability payments are now allowed to keep child support payments.

Before September, 2015, the collection of child support payments for people on social assistance was run by the [http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services Family Maintenance Program] (FMP). (This is a different organization than the Family Maintenance Enforcement Program (FMEP), which enforces child support payments between parents.) FMP had the authority to pursue child support however it saw fit and could apply for orders or apply to vary child support orders on behalf of the recipients, who were required to cooperate with FMP's actions. When the changes were announced, the government indicated that it would still offer assistance in collecting child support even though social assistance recipients would not have their child support "clawed back". How much assistance is actually being offered is not presently known to the writers. If you have any experiences in this area, feel free to send an email to the editorial team. We can be reached at editor@clicklaw.bc.ca.

===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 or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $10,820 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.

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 their 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 their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see S.3 (1)(l).

===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 but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under 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 a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

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:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

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/8qx3 Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services 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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], May 18, 2019}}

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[[Category:JP Boyd on Family Law]]

Child Support

2019-05-18T22:01:43Z

Inga Phillips:

{{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 = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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]] (the 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 or agreements 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. The obligation to pay child support for adult children is also discussed.

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 as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

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 virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain 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 November 22, 2017. For most people, the changes resulted in a small 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 priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

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

a) the parents (or one parent and one step-parent) are or have been legally married;

b) at least one of the parents or a step=parent have lived in the province continuously for at least one year immediately before the court action is started.

Divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or 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 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 (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents 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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

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

Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===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 (child support is a kind of corollary relief)
*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 if they were in no particular relationship with each other at all but had a child together. 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. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

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 (there are some exceptions where child support for adult children is concerned)
*Child support obligations may end for an adult child if the adult child unilaterally without good reason stopped having a meaningful relationship with the parent who pays support). See the case of Farden v. Farden http://canlii.ca/t/1dk6h
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their 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: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*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.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*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 their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===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, 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 centered 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 the other parent 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 their 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.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See Family Maintenance Enforcement Act, Section 26.

===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 their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

===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?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

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. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which 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, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in 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 their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, 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 say 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 stop 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 their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===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. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they 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 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/fl-df/enforce-execution/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:
* Canada – all of the provinces and territories;
* United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
* Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
* Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
* Caribbean – Barbados and its Dependencies;
* Africa – South Africa, Zimbabwe; and
* Asia – Hong Kong, Republic of Singapore

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 their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

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

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependents when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

==Child support and social assistance==

When a parent who is entitled to receive child support goes on social assistance, the government agrees to provide support for that parent and their 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 support the child, as they have the legal obligation to do so, 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===

It used to be that child support paid to a recipient of social assistance was "clawed back" by the government. However, since September, 2015, those receiving social assistance or disability payments are now allowed to keep child support payments.

Before September, 2015, the collection of child support payments for people on social assistance was run by the [http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services Family Maintenance Program] (FMP). (This is a different organization than the Family Maintenance Enforcement Program (FMEP), which enforces child support payments between parents.) FMP had the authority to pursue child support however it saw fit and could apply for orders or apply to vary child support orders on behalf of the recipients, who were required to cooperate with FMP's actions. When the changes were announced, the government indicated that it would still offer assistance in collecting child support even though social assistance recipients would not have their child support "clawed back". How much assistance is actually being offered is not presently known to the writers. If you have any experiences in this area, feel free to send an email to the editorial team. We can be reached at editor@clicklaw.bc.ca.

===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 or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $10,820 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.

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 their 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 their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see S.3 (1)(l).

===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 but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under 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 a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

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:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

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/8qx3 Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services 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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], May 18, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Child Support

2019-05-18T22:01:01Z

Inga Phillips:

{{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 = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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]] (the 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 or agreements 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. The obligation to pay child support for adult children is also discussed.

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 as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

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 virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain 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 November 22, 2017. For most people, the changes resulted in a small 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 priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

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

a) the parents (or one parent and one step-parent) are or have been legally married;

b) at least one of the parents or a step=parent have lived in the province continuously for at least one year immediately before the court action is started.

Divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or 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 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 (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents 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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

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

Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===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 (child support is a kind of corollary relief)
*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 if they were in no particular relationship with each other at all but had a child together. 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. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

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 (there are some exceptions where child support for adult children is concerned)
*Child support obligations may end for an adult child if the adult child unilaterally without good reason stopped having a meaningful relationship with the parent who pays support). See the case of Farden v. Farden http://canlii.ca/t/1dk6h
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their 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: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*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.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*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 their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===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, 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 centered 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 the other parent 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 their 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.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See Family Maintenance Enforcement Act, Section 26.

===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 their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

===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?
#Does the person against whom the order is sought have a duty to pay child support?
#How much support should the child receive?
#How long should support be paid for?

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. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which 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, not later than one year after separation.

Second, the court must find that the child qualifies as a ''child'' as set out in the ''Family Law Act'' or as a ''child of the marriage'' as set out in 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 their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892.

Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting within the definitions.

If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, 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 say 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 stop 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 their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take a court action against the biological parent before the court will make any orders against a stepparent.

===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. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they 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 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/fl-df/enforce-execution/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:
* Canada – all of the provinces and territories;
* United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
* Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
* Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
* Caribbean – Barbados and its Dependencies;
* Africa – South Africa, Zimbabwe; and
* Asia – Hong Kong, Republic of Singapore

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 their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

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

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependents when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

==Child support and social assistance==

When a parent who is entitled to receive child support goes on social assistance, the government agrees to provide support for that parent and their 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 support the child, as they have the legal obligation to do so, 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===

It used to be that child support paid to a recipient of social assistance was "clawed back" by the government. However, since September, 2015, those receiving social assistance or disability payments are now allowed to keep child support payments.

Before September, 2015, the collection of child support payments for people on social assistance was run by the [http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services Family Maintenance Program] (FMP). (This is a different organization than the Family Maintenance Enforcement Program (FMEP), which enforces child support payments between parents.) FMP had the authority to pursue child support however it saw fit and could apply for orders or apply to vary child support orders on behalf of the recipients, who were required to cooperate with FMP's actions. When the changes were announced, the government indicated that it would still offer assistance in collecting child support even though social assistance recipients would not have their child support "clawed back". How much assistance is actually being offered is not presently known to the writers. If you have any experiences in this area, feel free to send an email to the editorial team. We can be reached at editor@clicklaw.bc.ca.

===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 or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $10,820 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.

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 their 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 their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see S.3 (1)(l).

===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 but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under 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 a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

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:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

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/8qx3 Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services 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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Child Support

2019-05-18T21:52:36Z

Inga Phillips:

{{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 = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
}}
{{Clicklawbadge
| resourcetype = more resources on 
| link = [https://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]] (the 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 or agreements 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. The obligation to pay child support for adult children is also discussed.

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 as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, such as stepparents.

Child support is a payment made by one parent or guardian (the ''payor''), to the other parent or guardian, the (''recipient''), to help meet the costs the recipient bears as a result of the child's needs. The payment of child support 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.

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 virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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]]''. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal [[Child Support Guidelines]].

The Guidelines contain 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 November 22, 2017. For most people, the changes resulted in a small 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 priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

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

a) the parents (or one parent and one step-parent) are or have been legally married;

b) at least one of the parents or a step=parent have lived in the province continuously for at least one year immediately before the court action is started.

Divorce action can only be started in Supreme Court, not Provincial Court.

Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or 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 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 (19 in British Columbia), and
*child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents.

The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot withdraw from the charge of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if a child's academic career qualifies them 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other resources,
*the child's academic performance and dedication to their studies,
*both parents’ financial situation, and
*any plans the parents 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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

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

Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

===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 (child support is a kind of corollary relief)
*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 if they were in no particular relationship with each other at all but had a child together. 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. It is interesting that while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

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 (there are some exceptions where child support for adult children is concerned)
*Child support obligations may end for an adult child if the adult child unilaterally without good reason stopped having a meaningful relationship with the parent who pays support). See the case of Farden v. Farden http://canlii.ca/t/1dk6h
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between them may be important when deciding child support obligations and amounts.
*Child support can be paid by guardians and stepparents.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their 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: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*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.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: [http://canlii.ca/t/1rn88 ''McConnell v. McConnell''], 2007 BCSC 748.
*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 their parents because of illness, a reasonable delay in finishing high school, or the child attending post-secondary education.

On this last point, the factors a court will consider in deciding if a child's academic career continues to qualify the child for support are the same factors listed under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']] above.

===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, 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 centered 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 the other parent 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 their 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.

But be aware that the person who receives child support can register a charge against the real estate property that belongs to the person who pays child support even if there are no arrears of child support. See Family Maintenance Enforcement Act, Section 26.

===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 their estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

===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 much support should the child receive?
#How long should the child receive support?

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. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which 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, not later than one year after separation.

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 their parents or guardians.

It is important that the application for child support be made while the child still qualifies for child support, otherwise, the court will not have jurisdiction to make a child support order, even a retroactive child support order. There may be an exception to this general rule in variations of an existing order or an agreement, see cases of MacCarthy v. MacCarthy, 2015 BCCA 496 and Colucci v. Colucci, 2017 ONCA 892.

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 fourth decision the court must make is to figure out how much the payor should pay. The court must first make a finding as to the payor's annual income, 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 their parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take court proceedings against the biological parent before it will make any orders against a stepparent.

===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. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, they 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 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/fl-df/enforce-execution/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:
* Canada – all of the provinces and territories;
* United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
* Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
* Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
* Caribbean – Barbados and its Dependencies;
* Africa – South Africa, Zimbabwe; and
* Asia – Hong Kong, Republic of Singapore

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 their support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient

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, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.

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

In a shared parenting situation, where each parent has to pay child support to the other parent, the higher income parent often just pays the difference between the higher amount they owe and the lower amount they would receive. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency (CRA) has taken the position that:

*If the agreement or court order says that ''only'' the higher income earning parent pays the difference, then
*the CRA will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.

In that case, the CRA will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependents when they file taxes. It is important, therefore, to state that ''each'' parent pays child support to the other. And it's probably best to not even mention in the court order or agreement the net set-off amount actually paid.

Suggested wording for an agreement dealing with child support in shared parenting situations might be as follows:

<blockquote><tt>1. The present parenting arrangements made with respect to the children qualify as shared custody within the meaning of the Federal Child Support Guidelines (the “Guidelines”), in that it is anticipated by Parent 1 and Parent 2 that the children will live with each Parent not less than 40% of the time.</tt></blockquote>
<blockquote><tt>1. For the purposes of determining the basic child support payable pursuant to the Guidelines, Jane and John agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Jane’s annual income for present calculation purposes is $_______;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) John’s annual income for present calculation purposes is $_______; </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) Such that Jane will pay John the sum of $___ as base Guidelines child support for 2 children, and John will pay Jane the sum of $___ as base Guidelines child support for 2 children.</tt></blockquote></blockquote>
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other.

==Child support and social assistance==

When a parent who is entitled to receive child support goes on social assistance, the government agrees to provide support for that parent and their 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 support the child, as they have the legal obligation to do so, 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===

It used to be that child support paid to a recipient of social assistance was "clawed back" by the government. However, since September, 2015, those receiving social assistance or disability payments are now allowed to keep child support payments.

Before September, 2015, the collection of child support payments for people on social assistance was run by the [http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services Family Maintenance Program] (FMP). (This is a different organization than the Family Maintenance Enforcement Program (FMEP), which enforces child support payments between parents.) FMP had the authority to pursue child support however it saw fit and could apply for orders or apply to vary child support orders on behalf of the recipients, who were required to cooperate with FMP's actions. When the changes were announced, the government indicated that it would still offer assistance in collecting child support even though social assistance recipients would not have their child support "clawed back". How much assistance is actually being offered is not presently known to the writers. If you have any experiences in this area, feel free to send an email to the editorial team. We can be reached at editor@clicklaw.bc.ca.

===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 or disability social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $10,820 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.

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 their 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 their parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The arrears are the sum of money that should have been paid according to the court order or an agreement 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 they become an adult able to sue someone at the age of 19 in British Columbia.

The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court – see S.3 (1)(l).

===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 but it is a bit complicated.

First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under 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 a child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

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:
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents (and therefore still qualifies as a "child" entitled to receive support).
#The child is a minor and applies for support through a ''litigation guardian'' (formerly known as a guardian ''ad litem'').

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/8qx3 Limitation Act]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services 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 = [[Bill Murphy-Dyson | William Murphy-Dyson]] and [[Inga Phillips]], July 19, 2018}}

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