Spousal and Child Support (3:X)

A. General

Support is the financial support one person provides for another person (adult or child). This is meant to provide for that person’s reasonable needs (i.e. food, clothing, shelter, education, and medical care). Spousal support is intended to pay for basic living expenses and is highly discretionary. In contrast, child support is an obligation acquired through parenthood; it is mandatory with firm guidelines. Child support always takes precedence over spousal support if a party’s ability to provide financial support is limited.

An application for support may be made under the FLA or DA, but it is essential to look into the standards, limitations and other important differences between the Acts. The parties may also agree on the issue of support and incorporate their agreement into a written document (a separation agreement), which may have the legal status and force of a personal contract. An agreement is not completely determinative of the issue however; the Court will make orders superseding the provisions of an agreement in order to bring the obligations of parties in line with the requirements of statute.

In making an order for spousal support, the Court will not look to the conduct (or misconduct) of the parties, but will consider the “condition, means and other circumstances of each” in making an order. Nevertheless, in Leskun v Leskun, [2006] SCJ No25 (SCC), the Court held that the effect of spousal misconduct on the other spouse’s ability to achieve self-sufficiency should be taken into consideration. In some cases, the Court will refer the matter to the registrar who holds an independent inquiry into the spouses’ assets, income liabilities, etc., and then recommends a “reasonable” support payment. This recommendation does not become an order until a judge confirms it. Arrangements for spousal support can be made as part of a separation agreement, granted at the time of a divorce or, if no order for support is made or denied at the time of divorce, within a reasonable time thereafter. Under the FLA, the time limit is 2 years for both married and unmarried couples who have lived together in a marriage-like relationship for at least two years (s 198; Meservy v Field, 2013 BCSC 2378). The exception to this rule is if the couple have a child(ren) together (s 3(1); CAM v MDQ, 2014 BCPC 110).

Orders for child support are almost always fixed according to the schedule of support payments set outin the Child Support Guidelines, which are based on the payer’s gross income and the number of children for whom support is being paid. There is an exception to the strict application of the Guidelines in cases where the parties share parenting responsibilities (i.e. where one parent has at least 40% of the time with the child(ren)). In those cases there is not simply a pay or spouse and a recipient, rather the support is typically calculated based on a set-off approach whereby each parent’s support obligation is calculated and one is set-off against the other.

The Court will not grant a divorce if there are not reasonable arrangements made for child support (DA, s11). The level of child support is based on the income of the non-custodial parent and is set out in the Federal Child Support Guidelines.

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

• Custody || Guardianship/Parenting Time
• Access || Parenting Time/Contact
• Maintenance || Support

B. Courts

Both the Supreme Court and the Provincial Court have the powers to grant or vary support orders made under the FRA and FLA, but only the Supreme Court can grant or vary support orders made under the DA. Only the Supreme Court can grant interim relief under the DA, but the Provincial Court can grant interim relief under the FLA.

1. Provincial Court

The Provincial (Family) Court is often the most accessible court to self represented litigants. It can deal with applications for support made under the FLA, as well with variation of previous Provincial Court child or spousal support and arrears of child or spousal support orders. Applications can be made at certain Provincial (Family) Courts for a Supreme Court Hearing.

2. Supreme Court

The Supreme Court can order interim relief under the DA or FLA or make an order for support upon the granting of a divorce order. If a Supreme Court order for support is made under the DA, that order ousts any provincial statutory jurisdiction in that matter. While obtaining interim relief from the Supreme Court is more expensive than obtaining a Provincial (Family) Court order, it can be faster if the application is urgent or if the party wishes to proceed ex parte (without notice to the other side).

C. Enforcement

1. Family Maintenance Enforcement Act (RSBC 1996, c 127) [FMEA]

This Act, passed in 1988, gives the provincial government extensive powers to collect support arrears including:

• a Notice of Attachment (s 17);
• 12-month garnishing orders (s 18);
• Attachment Orders (s 24); and
• Attachment of money owing by the Crown (s 25) including Income Tax refunds and Employment Insurance benefits directly from the Federal Crown.

The program can only enforce support orders if the payor is in its jurisdiction or sister jurisdictions that will assist in enforcing the order. For a complete list of sister jurisdictions see https://www.fmep.gov.bc.ca/paying-or-receiving-maintenance/out-of-province-orders/other-jurisdictions/.

Any person, who receives a support order or separation agreement that has been filed in court, may voluntarily register with the program. Soon, there will be a change in this collection method. It will no longer the case that the provincial government will help people track down people not paying the required support orders. Under this new scheme, any support received by a person will not be deducted from any benefits that the person might also be receiving. This change is only for people who are on income assistance, but they can opt in so that the Family Maintenance Program will pursue support on their behalf.

2. Reciprocal Enforcement

If properly filed in BC, a support order from another jurisdiction is enforceable under the FMEA. All other Canadian jurisdictions have similar legislation and will enforce BC orders on registration in their courts. Many foreign jurisdictions will also enforce BC orders; see the table of reciprocating states in the Court Order Enforcement Act, RSBC 1996,c 78.

3. Variation of Orders

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

There may also be a variation in child support levels. Child support levels will change with a change in income, which is virtually automatic when one makes an application in court. Provincial Court orders made in other Canadian jurisdictions and in certain reciprocating foreign states may be varied under the Interjurisdictional Support Orders Act, SBC 2002, c 29. The Act creates a system where an application is made through the filing of prescribed documents and filed with the Reciprocals Office in British Columbia, which is responsible for transmitting the documents to the originating jurisdiction for adjudication.

Support orders made under the DA may only be varied through the provisions of sections 17, 18, and 19. In this process, someone seeking to change a support order made in another Canadian jurisdiction must apply to the courts of BC for a provisional order. The provisional order is sent to the originating jurisdiction for a second hearing to confirm the order. Unless the order is confirmed, the provisional order has no effect.

4. Agreements

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

D. Spousal Support

The fundamental question in determining spousal support is whether the division of assets in a divorce has satisfied spousal support requirements. Although it should be noted that if a party is entitled to compensatory support arising from the relationship, the receipt of significant assets in the division of assets may not result in a loss of entitlement to support (See Chutter v. Chutter, 2009 BCCA 177).

1.Legislation

a) Divorce Act [DA]

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

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