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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)
Revision as of 01:56, 29 December 2020
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= September 29, 2020}} | ||
{{LSLAP Manual TOC|expanded = family}} | {{LSLAP Manual TOC|expanded = family}} | ||
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== B. Courts == | == B. Courts == | ||
Both the Supreme Court and the Provincial Court have the powers to grant or vary support orders made under the | Both the Supreme Court and the Provincial Court have the powers to grant or vary support orders made under the ''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 === | === 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. | 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 === | === 2. Supreme Court === | ||
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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. | 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 provided there is a change in circumstances per the Child Support Guidelines, which include changes in the payor parent’s income (''DA'', s 17(4), ''FLA'' s 152). If the payor’s income has changed, a variation of the child support order 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. | There may also be a variation in child support levels provided there is a change in circumstances per the Child Support Guidelines, which include changes in the payor parent’s income (''DA'', s 17(4), ''FLA'' s 152). If the payor’s income has changed, a variation of the child support order 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 Division 2 of 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. | 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. | ||
As of March 1, 2021, sections 17, 18, and 19 of the DA will be repealed or revised to include new language related to parenting, as well as new provisions for addressing variation, recission, and suspension of orders (s 17), interjurisdictional proceedings (s 18), and proceedings between a province and another designated jurisdiction (s 19). | |||
=== 4. Agreements === | === 4. Agreements === | ||
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The final version of the [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html ''Spousal Support Advisory Guidelines'' (''SSAG'')] was published in July 2008. The ''SSAG'' do not have the force of law and are not expected to become law. | The final version of the [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html ''Spousal Support Advisory Guidelines'' (''SSAG'')] was published in July 2008. The ''SSAG'' do not have the force of law and are not expected to become law. | ||
The ''SSAG'' set out two basic mathematical formulae for determining the quantum and duration of spousal support when a person’s entitlement to receive support is established: the “with children” formula when the parties have dependent children, and the “without children” formula when child support is not being paid. The “without children” formula is relatively simple, | The ''SSAG'' set out two basic mathematical formulae for determining the quantum and duration of spousal support when a person’s entitlement to receive support is established: the “with children” formula when the parties have dependent children, and the “without children” formula when child support is not being paid. The “without children” formula is relatively simple. However, the “with children” formula cannot be completed without the assistance of a computer program (refer to http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html). | ||
While the ''SSAG'' have no regulatory effect and are merely “informal”, and “advisory”, they are nevertheless being used by the courts and the bar and the ranges provided by the SSAG are given strong consideration by the Court after the entitlement analysis is complete (see [http://canlii.ca/t/1lb8m ''Yemchuk v Yemchuk'', 2005 BCCA 406] and [http://canlii.ca/t/1nwzz ''Redpath v Redpath'', 2006 BCCA 338]). | While the ''SSAG'' have no regulatory effect and are merely “informal”, and “advisory”, they are nevertheless being used by the courts and the bar and the ranges provided by the SSAG are given strong consideration by the Court after the entitlement analysis is complete (see [http://canlii.ca/t/1lb8m ''Yemchuk v Yemchuk'', 2005 BCCA 406] and [http://canlii.ca/t/1nwzz ''Redpath v Redpath'', 2006 BCCA 338]). | ||
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Other tax issues can arise if payments are made through a corporate account or if the payor has a lower tax burden than usual (i.e. aboriginal spouses or U.S. residents). | Other tax issues can arise if payments are made through a corporate account or if the payor has a lower tax burden than usual (i.e. aboriginal spouses or U.S. residents). | ||
=== 4. Limitation Period === | |||
See Section XV for the limitation periods for bringing claims for spousal support for both married spouses and common-law spouses. | |||
== E. Child Support == | == E. Child Support == | ||
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Under the ''DA'', the definition of “child” is someone who is under the age of majority (19 years in B.C.) '''and''' who has not withdrawn from the parent’s charge, or who is at or over the age of majority but unable, by reason of illness, disability or other cause, to withdraw from parental charge or to obtain necessaries of life. Therefore, under the ''DA'', there may not be an obligation to pay child support to a child under 19, if the child has already withdrawn from the parent's charge. | Under the ''DA'', the definition of “child” is someone who is under the age of majority (19 years in B.C.) '''and''' who has not withdrawn from the parent’s charge, or who is at or over the age of majority but unable, by reason of illness, disability or other cause, to withdraw from parental charge or to obtain necessaries of life. Therefore, under the ''DA'', there may not be an obligation to pay child support to a child under 19, if the child has already withdrawn from the parent's charge. | ||
Under the ''FLA'', the definition of “child” is a person who is under 19 years of age or a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessities of life or withdraw from the charge of | Under the ''FLA'', the definition of “child” is a person who is under 19 years of age or a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessities of life or withdraw from the charge of their parents or guardians. | ||
=== 2. General === | === 2. General === | ||
Child support is intended to be used to pay most of a child’s day-to-day expenses. The amount of child support payable is determined under the Federal Child Support Guidelines, which set support levels based on the payor’s income and the number of children to be supported and the parenting arrangements in place. Several web sites, including J.P. Boyd’s helpful site, offer online child support calculators (see [[Governing Legislation and Resources for Family Law (3:I)#3. J.P. Boyd’s BC Family Law Web Resource | J.P. Boyd’s BC Family Law Web Resource]]). If the paying parent lives in B.C., | Child support is intended to be used to pay most of a child’s day-to-day expenses. The amount of child support payable is determined under the Federal Child Support Guidelines, which set support levels based on the payor’s income and the number of children to be supported and the parenting arrangements in place. Several web sites, including J.P. Boyd’s helpful site, offer online child support calculators (see [[Governing Legislation and Resources for Family Law (3:I)#3. J.P. Boyd’s BC Family Law Web Resource | J.P. Boyd’s BC Family Law Web Resource]]). If the paying parent lives in B.C., child support is determined by the B.C. [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp Child Support Tables]; the appropriate table is for the province where the paying parent lives, not where the child lives. | ||
The Court may also provide for “special or extraordinary” expenses in a Child Support Order (see s 7 of the ''Federal Child Support Guidelines''), in addition to the basic child support order, requiring payment for other expenses such as child care, health related expenses (e.g. orthodontic treatment, hearing aids, prescription drugs, speech therapy, contact lenses and professional counselling), expenses for child care in order to maintain employment (see [http://canlii.ca/t/1nss7 ''Bially v Bially'' (1997), 28 RFL (4th) 418 (Sask. QB)]), extraordinary educational expenses for primary and secondary education, expenses for post-secondary education, and expenses for extracurricular activities. | The Court may also provide for “special or extraordinary” expenses in a Child Support Order (see s 7 of the ''Federal Child Support Guidelines''), in addition to the basic child support order, requiring payment for other expenses such as child care, health-related expenses (e.g. orthodontic treatment, hearing aids, prescription drugs, speech therapy, contact lenses and professional counselling), expenses for child care in order to maintain employment (see [http://canlii.ca/t/1nss7 ''Bially v Bially'' (1997), 28 RFL (4th) 418 (Sask. QB)]), extraordinary educational expenses for primary and secondary education, expenses for post-secondary education, and expenses for extracurricular activities. | ||
Expenses for extracurricular activities must be reasonable having regard to the parents’ means, but need not be restricted to a special talent of the child. “Extraordinary” is also determined by what would be extraordinary in a household with a similar income; it depends on the lifestyle of the family. | Expenses for extracurricular activities must be reasonable having regard to the parents’ means, but need not be restricted to a special talent of the child. “Extraordinary” is also determined by what would be extraordinary in a household with a similar income; it depends on the lifestyle of the family. | ||
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==== b) Family Law Act [FLA] ==== | ==== b) Family Law Act [FLA] ==== | ||
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 their 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 ([http://canlii.ca/t/fzchl ''MA v FA'', 2013 BCSC 1077]). If the child was removed from the family by the state ([http://canlii.ca/t/g91cr ''DZM v SM'', 2014 BCPC 198]) or refuses to visit, this is not considered voluntary withdrawal ([http://canlii.ca/t/g83qv ''Henderson v Bal'', 2014 BCSC 1347]). However, if this child returns to their 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 ([http://canlii.ca/t/g82v2 ''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 ([http://canlii.ca/t/g6r8f ''CB v MB'', 2014 BCPC 75]). | |||
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 | |||
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''. | 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''. | ||
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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. | 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. | ||
=== 4. Limitation Period === | |||
See section XV for the limitation periods regarding child support claims. | |||
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