Child Support: 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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{{ | {{LSSbadge | ||
| 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] | ||
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]], which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always set using the tables. | }}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]], which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always set using the tables. | ||
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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, more than one person who meets the Act's definitions of "parent" and "stepparent" are required to pay child support for the same child at the same time. In fact, there are even cases in which a parent has been involved in a series of long-term relationships, each of which were long enough to create a child support obligation for each of the parent's partners. | 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, more than one person who meets the Act's definitions of "parent" and "stepparent" are required to pay child support for the same child at the same time. In fact, there are even cases in which a parent has been involved in a series of long-term relationships, each of which were long enough to create a child support obligation for each of the parent's partners. | ||
A 2004 case of the Supreme Court, [ | A 2004 case of the Supreme Court, [https://canlii.ca/t/1gfqg H.J.H. v. N.H.H.], decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In H.J.H., the parties had been married for less than three years when they separated. Each had been previously married, and the problem centred around the wife's child from a previous relationship and whether the husband should have to support the child. The court found that the husband, who qualified as a stepparent under the act, was not responsible for paying support, because of the combined effect of the following factors: | ||
*the marriage was short, | *the marriage was short, | ||
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*Whether stepparents and adult children do or don't have an ongoing relationship may be important when deciding if child support should be paid and in what amount. | *Whether stepparents and adult children do or don't have an ongoing relationship may be important when deciding if child support should be paid and in what amount. | ||
*Applications for child support from a stepparent under the ''Family Law Act'' 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. | *Applications for child support from a stepparent under the ''Family Law Act'' 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 off-and-on contributions may not be enough, as the court in the 2007 Supreme Court case of [ | *What qualifies as “contribution” to the support of the child depends on the facts. Trivial or off-and-on contributions may not be enough, as the court in the 2007 Supreme Court case of [https://canlii.ca/t/1rn88 McConnell v. McConnell] discussed. | ||
===Securing a child support obligation=== | ===Securing a child support obligation=== | ||
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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: | 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 process here, in British Columbia, using the provincial ''[ | #start the process here, in British Columbia, using the provincial ''[https://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 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 then enforce that order in the place where the other parent lives. | #start a court proceeding here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and then 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 [https://www.isoforms.bc.ca/ Interjurisdictional Support Services] office. A staff member will forward that package to the [ | 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 [https://www.isoforms.bc.ca/ Interjurisdictional Support Services] office. A staff member will forward that package to the [https://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 either be the ''Divorce Act'', if the other parent is outside of Canada, or the local equivalent of British Columbia's ''Family Law Act'', if the other parent lives elsewhere in Canada. | ||
The ''Interjurisdictional Support Orders Act'' process applies in every province and territory. However, only certain countries have agreed to the ''Interjurisdictional Support Orders Act'' process. If the country 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 ''Interjurisdictional Support Orders Act'' process applies in every province and territory. However, only certain countries have agreed to the ''Interjurisdictional Support Orders Act'' process. If the country 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]]''. | ||
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* Asia — Hong Kong and Republic of Singapore | * Asia — Hong Kong and Republic of Singapore | ||
See the [ | See the [https://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] for the current list. | ||
==Income tax issues== | ==Income tax issues== | ||
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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 anymore. Any child support payments made pursuant to a written agreement or court order made after 30 April 1997 are neither deductible for the payor nor taxable for the recipient. | 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 anymore. Any child support payments made pursuant to a written agreement or court order made after 30 April 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 [ | 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 [https://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s1/f3/s1-f3-c3-eng.html#N10C4B Income Tax Folio S1-F3-C3, Support Payments] for the fine print, and speak to an accountant to get advice to see if you qualify to write off the portion of your lawyer’s bill that relates to child support. | ||
To claim this deduction, the lawyer must write a letter to the Canada Revenue Agency 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 should 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 your claim for child support. | To claim this deduction, the lawyer must write a letter to the Canada Revenue Agency 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 should 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 your claim for child support. | ||
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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. | 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. 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 ''[ | When someone does not pay child support, or pays less than they are required to pay, "arrears" build up. 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 ''[https://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 ''[https://canlii.ca/t/84h6 Court Order Interest Act]'', is owing on judgment debts. | ||
An adult 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 else, age 19 in British Columbia. | An adult 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 else, age 19 in British Columbia. | ||
The ''[ | The ''[https://canlii.ca/t/8qx3 Limitation Act]'' 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 section 3(1)(l) of the act. | ||
===When there isn't an order between the parents=== | ===When there isn't an order between the parents=== | ||
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* ''[[Family Law Act]]'' | * ''[[Family Law Act]]'' | ||
* ''[[Divorce Act]]'' | * ''[[Divorce Act]]'' | ||
* [ | * [https://canlii.ca/t/80mh Child Support Guidelines] | ||
* ''[ | * ''[https://canlii.ca/t/7vf2 Criminal Code]'' | ||
* ''[ | * ''[https://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'' | ||
* [ | * [https://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] | ||
* ''[ | * ''[https://canlii.ca/t/7vb7 Income Tax Act]'' | ||
* ''[ | * ''[https://canlii.ca/t/84h5 Court Order Enforcement Act]'' | ||
* ''[ | * ''[https://canlii.ca/t/84h6 Court Order Interest Act]'' | ||
* ''[ | * ''[https://canlii.ca/t/8qx3 Limitation Act]'' | ||
* ''[ | * ''[https://canlii.ca/t/840m Family Maintenance Enforcement Act]'' | ||
===Links=== | ===Links=== | ||
* [ | * [https://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice's website: "Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement"] (list of reciprocals offices by province) | ||
* [ | * [https://www.isoforms.bc.ca Ministry of Attorney General Interjurisdictional Support Services] (BC reciprocals office) | ||
* [ | * [https://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s1/f3/s1-f3-c3-eng.html#N10C4B Canada Revenue Agency's Income Tax Folio: S1-F3-C3, Support Payments] | ||
* [ | * [https://bit.ly/46Nr0YS Family Maintenance Services] from the BC Ministry of Attorney General | ||
* [ | * [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 and Spousal Support] from Legal Aid BC | ||
* [https://family.legalaid.bc.ca/finances-support/child-spousal-support/child-support Child Support] from Legal Aid BC | |||
{{REVIEWED | reviewer = [[JP Boyd]], 24 August 2022}} | {{REVIEWED | reviewer = [[JP Boyd]], 24 August 2022}} | ||
