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Difference between revisions of "Spousal and Child Support (3:X)"
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Spousal and Child Support (3:X) (view source)
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==== a) Divorce Act [DA] ==== | ==== a) Divorce Act [DA] ==== | ||
The ''Divorce Act'' provides for support orders as a corollary to divorce under s 15.1, with the discretion to extend support for a child who is over the age of majority and is unable, by reason of illness, disability or other cause, to withdraw from their charge. If the majority-age child is otherwise unable to obtain the necessaries of life – for example, if the child is a university student – support orders may also be extended (s 2(1)). An order for child support made under the ''DA'' has effect throughout Canada (s 14). Under s 17(1) of the ''DA'', any court of competent jurisdiction, as defined by s 5, can vary, rescind, or suspend an order. Children born within the marriage and adopted children are treated equally under the ''DA''. However, some controversy remains as to whether a stepchild, for whom the respondent stood in ''loco parentis'', qualifies for support under the ''DA''. Child support will be assessed in light of the biological parents' support obligation. | The ''Divorce Act'' provides for support orders as a corollary to divorce under s 15.1, with the discretion to extend support for a child who is over the age of majority and is unable, by reason of illness, disability or other cause, to withdraw from their charge. If the majority-age child is otherwise unable to obtain the necessaries of life – for example, if the child is a university student – support orders may also be extended (s 2(1)). | ||
An order for child support made under the ''DA'' has effect throughout Canada (s 14). Under s 17(1) of the ''DA'', any court of competent jurisdiction, as defined by s 5, can vary, rescind, or suspend an order. | |||
Children born within the marriage and adopted children are treated equally under the ''DA''. However, some controversy remains as to whether a stepchild, for whom the respondent stood in ''loco parentis'', qualifies for support under the ''DA''. Child support will be assessed in light of the biological parents' support obligation. | |||
==== b) Family Law Act [FLA] ==== | |||
Generally, sections 153 – 159 of the ''FLA'' replace section 93.3 of the ''FRA'', but do not substantively change the provisions. The ''FLA'' continues to provide authority for the child support service and the recalculation project. | |||
Under section 147 of the ''FLA'', each parent and guardian of a child has a duty to provide support for the child unless the child is a spouse or 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 intolerable. For example, a child who has been incarcerated for more than one year is considered to have voluntarily withdrawn (''MA v FA'', 2013 BCSC 1077). If the child was removed from the family by the state (''DZM v SM'', 2014 BCPC 198) or refuses to visit, this is not considered voluntary withdrawal (''Henderson v Bal'', 2014 BCSC 1347). However, if this child returns to his or her parents’ or guardians’ charge, their duty to provide support to the child resumes. Additionally, section 147 of the ''FLA'' also states that a child’s stepparent does not have a duty to provide support for the child unless the stepparent contributed to the support of the child for at least one year and a proceeding for an order under this part is started within one year after the date the stepparent last contributed to the support of the child. Qualifying step-parents have a duty to provide child support (''CLP v ND'', 2014 BCPC 154). A step-parent may also be ordered to provide support if the parents are not able to provide the child with consistent and reasonable standards of living (''CB v MB'', 2014 BCPC 75). | |||
If parentage is at issue, section 151 of the ''FLA'' states that the Court may make an order respecting the child’s parentage in accordance to s 31 of the ''FLA'' or make an order under s 33(2) of the ''FLA''. | |||
==== c) Child Support Guidelines ==== | |||
The ''Federal Child Support Guidelines'' are federal regulations that determine the amount of child support owing, and vary from province to province. The guidelines establish how much child support must be paid based on the payor’s income and the number of children for whom support is to be paid. For more information refer to the resources listed at the end of the chapter. See http://www.bclawfamilyresource.com for more information on child support tables. | |||
==== d) Other Legislation ==== | |||
Section 215 of the ''Criminal Code'' places a legal duty on parents to provide their children with the necessaries of life until they reach the age of 16, unless the child is able to provide the necessaries of life independently. | |||
