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Difference between revisions of "Child Support"
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Child support is money paid by one parent or guardian to the other to help | 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 set 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 the amount set out in the tables. | ||
This chapter | This chapter discusses the basics of child support, child support orders under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'', and briefly look at how to get a child support order inside and outside of British Columbia. This chapter also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support. | ||
==Introduction== | ==Introduction== | ||
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After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child. | After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone bill, one electricity bill and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay for more of the child's expenses for things like school fees, food and clothing. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child. | ||
Child support is a payment made by one parent or guardian, the ''payor'', to the other, the ''recipient'', to help meet the costs the recipient bears as a result of the child's needs, and the payment of child support consequently helps to maintain or improve the child's living conditions. Child support is not a supplement to spousal support; it's money that is paid for the benefit of the child, not the parent with whom the child lives. Child support is not a fee paid in exchange for time with the child; child support is entirely different and unrelated to parenting time, contact, or access. | Child support is a payment made by one parent or guardian, the ''payor'', to the other, the ''recipient'', to help meet the costs the recipient bears as a result of the child's needs, and the payment of child support consequently helps to maintain or improve the child's living conditions. Child support is not a supplement to spousal support; it's money that is paid for the benefit of the child, not the parent with whom the child lives. Child support is not a fee paid in exchange for time with the child; child support is entirely different from and unrelated to parenting time, contact, or access. | ||
Child support is payable on the principle that both parents have a duty to financially contribute to the child's upbringing. The simple fact of biological parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation. | Child support is payable on the principle that both parents have a duty to financially contribute to the child's upbringing. The simple fact of biological parenthood triggers this obligation, even if the payor never sees the child and has no role in the child's life. Child support can also be payable by stepparents and people who are guardians and not parents, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation. | ||
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===Qualifying for Child Support=== | ===Qualifying for Child Support=== | ||
In the ''Divorce Act'', children are referred to as ''children of the marriage'', and a child must fall within the act's definition of a "child of the marriage" in order to be eligible for support. There are a couple of important definitions in s. 2(1) | In the ''Divorce Act'', children are referred to as ''children of the marriage'', and a child must fall within the act's definition of a "child of the marriage" in order to be eligible for support. There are a couple of important definitions in s. 2(1) that apply in determining whether a child is a child of the marriage: | ||
<blockquote><tt>"age of majority", in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age;</tt></blockquote> | <blockquote><tt>"age of majority", in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age;</tt></blockquote> | ||
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#child support can be owing from an adoptive parent, as well as a natural parent, | #child support can be owing from an adoptive parent, as well as a natural parent, | ||
#child support can be owing | #child support can be owing from stepparents (spouses who "stand in the place of a parent"), | ||
#child support is payable until a child reaches the age of majority in the province where the child lives, and | #child support is payable until a child reaches the age of majority in the province where the child lives, and | ||
#child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care. | #child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care. | ||
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In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program. | In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program. | ||
As far as "age of majority" is concerned, keep in mind that it is the provinces | As far as "age of majority" is concerned, keep in mind that it is the provinces that have the authority to set the age of majority, not the federal government. In British Columbia, the age of majority is 19. In other provinces the age of majority is 18. | ||
===Statutory provisions=== | ===Statutory provisions=== | ||
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==The ''Family Law Act''== | ==The ''Family Law Act''== | ||
A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses or in another unmarried relationship, or if they were in no particular relationship with each other at all. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been made a guardian of a child. | A parent or guardian can apply for child support under the ''[[Family Law Act]]'' whether the parties are married spouses, unmarried spouses, or in another unmarried relationship, or if they were in no particular relationship with each other at all. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been made a guardian of a child. | ||
Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''. | Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''. | ||
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*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, consecutive calendar year. | *The phrase "contributed to the support of the child for at least one year" does not mean for one whole, consecutive calendar year. | ||
*Any application for child support from a stepparent 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. | *Any application for child support from a stepparent 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. | ||
*Child support can be payable by a parent, a guardian and a stepparent, and by more than one stepparent, at the same time. | *Child support can be payable by a parent, a guardian, and a stepparent, and by more than one stepparent, at the same time. | ||
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home. | *A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home. | ||
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of his or her parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondry education. | *Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of his or her parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondry education. | ||
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===Securing a child support obligation=== | ===Securing a child support obligation=== | ||
Under s. 170, the court may make a number of additional orders when it is making an order for child support that can help to ensure that child support continues to be paid, including after the death of the payor. The court may: | Under s. 170, the court may make a number of additional orders when it is making an order for child support that can help to ensure that child support continues to be paid, including after the death of the payor. | ||
The court may: | |||
#order that a charge be registered against property, | #order that a charge be registered against property, | ||
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Third, the court must find that the person against whom the claim is made is liable to pay child support. This is also a matter of fitting within the definitions. | Third, the court must find that the person against whom the claim is made is liable to pay child support. This is also a matter of fitting within the definitions. | ||
If the first three conditions have been met, the court must then figure out how much the payor should pay. This is pretty easy for parents, but can be more difficult for guardians who are not parents and for stepparents. The court must first make a finding as to the payor's annual income, usually with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, | If the first three conditions have been met, the court must then figure out how much the payor should pay. This is pretty easy for parents, but can be more difficult for guardians who are not parents and for stepparents. The court must first make a finding as to the payor's annual income, usually with the help of the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which are discussed in the section [[Exceptions to the Child Support Guidelines]]. | ||
Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements limit themselves by providing that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a termination date for support usually only crops up where the child is an adult engaged in post-secondary studies or otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier. | Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements limit themselves by providing that child support shall be paid "until," for example, "the child is no longer a child of the marriage as defined by the ''Divorce Act''," "the child is no longer a child as defined by the ''Family Law Act''," or "the child reaches the age of 19." The question of a termination date for support usually only crops up where the child is an adult engaged in post-secondary studies or otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier. | ||
