Child Support Guidelines: Difference between revisions
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|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]] | |ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]] | ||
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| resourcetype = <br/>more resources on<br/> | | resourcetype = <br/>more resources on<br/> | ||
| link = [https:// | | link = [https://family.legalaid.bc.ca/finances-support/child-spousal-support/child-support child support] | ||
}}Often referred to as just "the Guidelines," the [http://canlii.ca/t/80mh Child Support Guidelines] 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. | }}Often referred to as just "the Guidelines," the [http://canlii.ca/t/80mh Child Support Guidelines] 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. | ||
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<blockquote><blockquote><tt>(v) any other similar factor that the court considers relevant.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(v) any other similar factor that the court considers relevant.</tt></blockquote></blockquote> | ||
Here's a helpful summary of how section 7(1.1) works from a 2010 case from the Supreme Court, [ | Here's a helpful summary of how section 7(1.1) works from a 2010 case from the Supreme Court, [https://canlii.ca/t/2dpzr Piper v. Piper]: | ||
<blockquote>"Under section 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 section 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 section 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."</blockquote> | <blockquote>"Under section 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 section 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 section 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."</blockquote> | ||
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*lessons or coaching in arts and sports, where the child has a special talent that should be nurtured. | *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 an extraordinary expense on the basis of necessity, since you can learn to drive and obtain a driver's license without it, as was decided in a 2011 case, [ | A driver training course, for example, is unlikely to qualify as an extraordinary expense on the basis of necessity, since you can learn to drive and obtain a driver's license without it, as was decided in a 2011 case, [https://canlii.ca/t/2fzs4 M.S.J. v. J.M.J.] 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=== | ===Sharing qualifying expenses=== | ||
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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. | 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 [ | According to Rule 5-1 of the [https://canlii.ca/t/8mcr Supreme Court Family Rules] and Rule 25 of the [https://canlii.ca/t/b8rn Provincial Court Family Rules], when someone makes an application for child support, the payor, or both the payor and the 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' tax returns, and what's required is the complete income tax and benefit return, not tax return "summaries" or "informations," | #the last three years' tax returns, and what's required is the complete income tax and benefit return, not tax return "summaries" or "informations," | ||
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The basic rule here is that a party's income for the purposes of the Guidelines is the amount stated at line 15000 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, overtime, rental income, profit from stock options, company dividends, Workers' Compensation payments, long- and 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. | The basic rule here is that a party's income for the purposes of the Guidelines is the amount stated at line 15000 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, overtime, rental income, profit from stock options, company dividends, Workers' Compensation payments, long- and 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. The amount of support paid in | 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. The amount of support paid in 2024 will be based on income earned and reported in 2023, and the amount paid in 2025 will be based on income from 2024. However, if a payor's current income can be known with certainty, such as if the payor is an employee who doesn't get bonus or commission income, child support can be determined using the payor's current income. | ||
===Government benefits=== | ===Government benefits=== | ||
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If you're 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 section 19(1) exist. If someone's underemployment or unemployment is caused by childcare responsibilities, the court will not usually impute income. | If you're 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 section 19(1) exist. If someone's underemployment or unemployment is caused by childcare responsibilities, the court will not usually impute income. | ||
It's not enough merely to ''argue'' that one of the circumstances listed in section 19(1) exist, you have to be able to ''prove'' that the circumstance exists. The following factors were discussed in a 2003 Supreme Court case, [ | It's not enough merely to ''argue'' that one of the circumstances listed in section 19(1) exist, you have to be able to ''prove'' that the circumstance exists. The following factors were discussed in a 2003 Supreme Court case, [https://canlii.ca/t/1pt18 Nahu v. Chertkow], in determining whether someone is intentionally underemployed or unemployed: | ||
*the payor's education, training, and work experience, | *the payor's education, training, and work experience, | ||
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*any evidence that the underemployment or unemployment is motivated by ill will towards the recipient. | *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 a 1999 Supreme Court case called [ | 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 a 1999 Supreme Court case called [https://canlii.ca/t/1d2x1 Hanson v. Hanson], the court had this to say on the subject: | ||
<blockquote>[14] The following principles apply when determining capacity to earn an income. </blockquote> | <blockquote>[14] The following principles apply when determining capacity to earn an income. </blockquote> | ||
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Section 7 of the Guidelines allows for the sharing of the children's qualifying special expenses and extraordinary expenses between 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 <span class="noglossary">account</span>, among other things, "the necessity and reasonableness of the expense in relation to the means of the spouses and those of the child." | Section 7 of the Guidelines allows for the sharing of the children's qualifying special expenses and extraordinary expenses between 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 <span class="noglossary">account</span>, 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 [ | 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 [https://canlii.ca/t/1fm6b Baum v. Baum]. 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 or extraordinary expenses as a result; only the parent's obligations will be affected by their new partner's income. | Again, the new partner will not be responsible to pay child support or a share of the children's special expenses or extraordinary expenses as a result; only the parent's obligations will be affected by their new partner's income. | ||
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Disclosure of income by both parents is also required in cases where one or more children live primarily with each parent and in cases where the parents share the children's time more or less equally. | Disclosure of income by both parents is also required in cases where one or more children live primarily with each parent and in cases where the parents share the children's time more or less equally. | ||
It's 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 application to change the original order. This was very important in the 2012 Court of Appeal case of [ | It's 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 application to change the original order. This was very important in the 2012 Court of Appeal case of [https://canlii.ca/t/fspd1 Yu v. Jordan]. | ||
===Agreements for child support=== | ===Agreements for child support=== | ||
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==Child support tables and calculators== | ==Child support tables and calculators== | ||
The [ | The [https://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-10.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 [https://www.justice.gc.ca/eng/fl-df/child-enfant/cst-orpe.html online child support calculator]. | ||
The provincial government also operates the BC Child Support Info Line that offers free information about child support and the child support tables. Contact the Info Line at: | The provincial government also operates the BC Child Support Info Line that offers free information about child support and the child support tables. Contact the Info Line at: | ||
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* ''[[Family Law Act]]'' | * ''[[Family Law Act]]'' | ||
* ''[[Divorce Act]]'' | * ''[[Divorce Act]]'' | ||
* [ | * [https://canlii.ca/t/80mh Child Support Guidelines] | ||
===Links=== | ===Links=== | ||
* [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-10.html#h-15 Child Support Guidelines Tables for British Columbia] | * [http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/page-10.html#h-15 Child Support Guidelines Tables for British Columbia] | ||
* [ | * [https://www.justice.gc.ca/eng/fl-df/child-enfant/cst-orpe.html Federal Department of Justice's Child Support Table Look-up] | ||
* [ | * [https://dialalaw.peopleslawschool.ca/child-support/ Child Support] from Dial-a-Law by the People's Law School | ||
* [ | * [https://family.legalaid.bc.ca/finances-support/child-spousal-support Child & spousal support] from Legal Aid BC | ||
* | * [https://family.legalaid.bc.ca/finances-support/child-spousal-support/child-support Child support] from Legal Aid BC | ||
