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 (the “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 the amount set out in the tables.

This section discusses the basics of child support, and child support orders or agreements under the Divorce Act and the Family Law Act. It briefly looks at how to get a child support order inside and outside of British Columbia. It 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. The obligation to pay child support for adult children is also discussed.

Other sections in this chapter look at the Guidelines in more detail. They also discuss exceptions to the Guidelines, how to make changes, and how to deal with arrears of child support.

Introduction

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 as well as accommodation. 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, such as stepparents.

Child support is a payment made by one parent or guardian, the payor, to the other parent or guardian, 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. Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments. Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and virtually unrelated to parenting time, or contact time.

Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of 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.

An order for child support can be made under s. 15.1 of the federal Divorce Act or s. 149 of the provincial Family Law Act. Alternatively, the parents can agree on child support in a separation agreement. Either way, the amount of support should, with only a few exceptions, conform to the rules set out in the federal Child Support Guidelines.

The Guidelines contain a series of tables, particular to each province, which set out the amount payable based on the payor's income and the number of children for whom support is being paid. There are some exceptions to this basic rule, and they are described later in this chapter. The tables were most recently updated on 31 December 2011. For most people, the changes resulted in an increase in the amount of child support payable.

Both the Divorce Act and the Family Law Act require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses and both obligations survive an assignment into bankruptcy.

The Divorce Act

The Divorce Act only applies to people who are or were married to each other, including a parent and a stepparent who are married to each other. A court can only make an order for child support under the Divorce Act if it has or had the jurisdiction to make an order for the spouses' divorce: that is, the spouses must be or have been legally married, and at least one spouse must have lived in the province where the court action is started for at least one year. Applications under the Divorce Act can only be heard by the Supreme Court, not the Provincial Court.

Parents who have not lived in British Columbia for one year but are married can still apply for child support under the Family Law Act.

Child support is considered so important that a court will not even grant the parties a divorce unless the judge is satisfied that adequate financial provisions are made for the children. You can find more information on child support in the context of divorce orders in the chapter Separation & Divorce, in the section on Divorce: 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) that apply in determining whether a child is a child of the marriage:

"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;

"child of the marriage" means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

As well, s. 2(2) of the act says that:

For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses or former spouses includes

(a) any child for whom they both stand in the place of parents; and

(b) any child of whom one is the parent and for whom the other stands in the place of a parent.

Taken together these definitions mean that:

1. child support can be owing from an adoptive parent, as well as a natural parent,
2. child support can be owing from stepparents (spouses who "stand in the place of a parent"),
3. child support is payable until a child reaches the age of majority in the province where the child lives (19 in British Columbia), and
4. child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care.

The Divorce Act says that an adult child can continue to be eligible for child support as long as he or she cannot "withdraw from the charge" of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to college or university, or because the child has a serious, chronic illness that prevents him or her from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies him or her as a "child of the marriage" include the following:

1. the age of the adult child,
2. whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
3. the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries, RESPs or other savings, and the like,
4. the child's academic performance and dedication to his or her studies,
5. both parents’ financial situation, and
6. any plans the parents may have made for the child's post-secondary schooling while they were still together.

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 parents have a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.

Please note that many post-secondary institutions consider that 60% of a full case load is “full-time” and the courts usually go along with this.

Although for dependent children over 19 child support is presumed to be the Guideline table amount, there is discretion in Section 3(2) of the Guidelines to order a different amount, an amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents.

Statutory provisions

The primary sections of the Divorce Act dealing with child support are these:

• s. 2: definitions
• s. 4: jurisdiction to make child support orders
• s. 5: jurisdiction to change orders
• s. 15.1: child support
• s. 15.3: child support has priority over spousal support
• s. 17: variation proceedings

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 appointed as a guardian of a child.

Both the Supreme Court and the Provincial Court can make orders for child support under the Family Law Act.

Qualifying for child support

Definitions play an important role in determining eligibility and responsibility for child support under the Family Law Act, just as they do under the Divorce Act. Section 147 of the Family Law Act says that each parent and guardian of a child is responsible for the support of that child, and s. 146 defines child, parent and guardian as follows:

"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;

"guardian" does not include a guardian

(a) who is not a parent, and

(b) whose only parental responsibility is respecting the child's legal and financial interests;

"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];

Section 146 gives a definition of stepparent for the definition of parent and says that:

"stepparent" means a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life.

However, s. 147 puts some really important limits on support for minor children, and on when stepparents are and aren't responsible to pay child support:

(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child

(a) is a spouse, or

(b) 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 objectively, intolerable.

(4) A child's stepparent does not have a duty to provide support for the child unless

(a) the stepparent contributed to the support of the child for at least one year, and

(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.

Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated. Ironically, while the stepparent and the child’s parent live together, the stepparent has no legal obligation to support that child, unless the stepparent becomes a guardian of the child.

As you can see, these definitions cast a very wide net and it's fairly easy to qualify as a parent who must pay child support. A few important points come from the case law on these definitions:

• All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other (there are some exceptions where child support for adult children is concerned, and the courts may look at the relationship between the adult child and the payor parent. For example, if there is clear evidence that an adult child unilaterally terminated the relationship with the payor parent, that factor may be taken into consideration).
• In the case of stepparents and adult children the existence (or non-existence) of the relationship between the parent and child may be taken into consideration when determining child support obligations and amounts.
• Child support can be payable by guardians and stepparents.
• The definition of "stepparent" includes anyone who has been the spouse of a parent and contributed to the support of his or her child for at least one year.
• The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year: Hagen v. Muir, [1999] B.C.J. No. 1458.
• 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.
• What qualifies as “contribution” to the support of the child depends on the facts. Trivial or sporadic financial contributions are not sufficient: McConnell v. McConnell, 2007 BCSC 748.
• Child support can be payable by more than one parent, guardian, and 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.
• 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-secondary education.

On this last point, the factors a court will consider in determining whether a child's academic career continues to qualify the child for support are the same factors enumerated under the Divorce Act section above.

Stepparents and child support

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, multiple people who meet the Act's definitions of parent and stepparent can be responsible for paying child support for the same child at the same time. In fact, there are a few cases in which parents have engaged in a number of long-term relationships, each of which were long enough to attract a child support obligation from the successive partners of those parents.

A 2004 case of the British Columbia Supreme Court, H.J.H. v. N.H.H., 2004 BCSC 179, decided under the old Family Relations Act, offers some guidance for stepparents trying to stick-handle around this issue. In this case, the parties had been married for less than three years when they separated. Each had been previously married, and the problem centered 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:

1. the marriage was short,
2. the stepparent's relationship with the child broke down shortly into the marriage,
3. the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
4. the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,
5. the child's biological parent was paying support, and
6. the parent had extended health and dental coverage for the child through the parent's employment.

The Family Law Act helps to clear up some of these confusing issues. Section 147(5) says:

If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty

(a) is secondary to that of the child's parents and guardians, and

(b) extends only as appropriate on consideration of

(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and

(ii) the length of time during which the child lived with the stepparent.

In most cases, stepparents aren't let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into account when assessing child support against a stepparent, look at the obligation of any non-parent guardians, and require stepparents only to make a sort of top-up payment rather than pay the full amount required by the Guidelines.

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:

1. order that a charge be registered against property,
2. require a payor with life insurance to maintain that policy and specify that the other parent or a child will be the beneficiary of the policy, or
3. order that child support continue to be paid after the payor's death and be paid from his or her estate.

Before the court makes an order that requires child support to be paid from the payor's estate, under s. 171(1), the court must consider:

1. whether the recipient's need for support will survive the payor's death,
2. whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, and,
3. whether any other means exist to meet the recipient's needs.

Child support when the payor dies

When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) that the payor's support obligation will continue and be paid from his or her estate.

When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's personal representative, the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.

Statutory provisions

The primary sections of the Family Law Act dealing with child support are these:

• s. 1: definitions
• s. 146: more definitions
• s. 147: duty to pay child support
• s. 148: agreements about child support
• s. 149: orders about child support
• s. 150: determining how much child support should be paid
• s. 152: varying orders about child support
• s. 170: securing a child support obligation
• s. 173: child support has priority over spousal support

Getting a child support order

There are five things the court must consider before a child support order can be made:

• Does the person asking for the order have the right to claim child support?
• Is the child entitled to receive child support?
• Is the person against whom the order is sought obliged to pay child support?
• How much support should the child receive?
• How long should the child receive support?

First, the court must decide that the person applying for a child support order, the applicant, is able to make the application. Usually, this is just a matter of fitting into the definitions given in the legislation. To make an order under the Divorce Act, the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be a spouse or former spouse who has lived in the province in which the application is made for at least one year. Under the Family Law Act, the applicant can be anyone included in the definitions of parent or guardian, and, if the claim is being made against a stepparent, the claim must be made within one year after the stepparent last contributed to the child's upkeep and after the stepparent and parent have separated, not later than one year after separation.

Second, the court must find that the child qualifies as a child as defined by the Family Law Act or as a child of the marriage as defined by the Divorce Act, and under the Family Law Act, the court must also find that the child is not a spouse and has not withdrawn from the care of his or her parents or guardians.

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. The court must first make a finding as to the payor's annual income, 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 this chapter discusses 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 is otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier.

The situation can be more complicated for payors who are not parents, that is, step-parents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a step-parent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take court proceedings against the biological parent before it will make any orders against a step-parent.

Getting an order inside British Columbia

A parent or guardian who is seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. If there are divorce and/or property division issues (which can only be heard by the Supreme Court) as well as support issues, it usually makes sense to proceed in Supreme Court. Whichever court the parent or guardian wants to proceed in, he or she must start a court proceeding. The process for starting a court proceeding is described in the chapter Resolving Family Law Problems in Court, in the section Starting a Court Proceeding in a Family Matter.

Getting an order outside British Columbia

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:

1. start the application process here, in British Columbia, using the provincial Interjurisdictional Support Orders Act,
2. start a court proceeding in the place where the other parent lives, or
3. start a court proceeding here under the Divorce Act or the Family Law Act, get a child support order, and try to 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 Reciprocals Office. A staff member will forward that package to the 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 not be the Family Law Act or the Divorce Act.

Only certain jurisdictions have agreed to the Interjurisdictional Support Orders Act process. If the place 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 countries that will cooperate with a proceeding under the Interjurisdictional Support Orders Act are:

• Canada – all of the provinces and territories;
• United States of America – all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa and the US Virgin Islands;
• Pacific Ocean – Australia, Fiji, New Zealand (including the Cook Islands), Papua New Guinea;
• Europe – Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, United Kingdom of Great Britain and Northern Ireland;
• Caribbean – Barbados and its Dependencies;
• Africa – South Africa, Zimbabwe; and
• Asia – Hong Kong, Republic of Singapore

See the Interjurisdictional Support Orders Regulation on CanLII or the BC Laws website, for the current list.

The British Columbia Reciprocals Office, along with all of the forms required by the Interjurisdictional Support Orders Act, can be found at www.isoforms.bc.ca.

Income tax considerations

It used to be the case that the person paying child support could claim an income tax deduction for his or her support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 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 Interpretation Bulletin IT-99R5 for the fine print.

To claim this deduction, the lawyer must write a letter to the CRA setting out what portion of his or her fees were attributable to advancing or enforcing a child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case, so that he or she can keep a log of time spent on the child support claim.

Child support and social assistance

When a parent who is entitled to receive child support goes on social assistance, the government agrees to provide support for that parent and his or her child. If there is someone else who might be obliged to support the child, such as another parent or guardian, the provincial government would prefer that this person pick up the tab rather than the taxpayer, and the government will usually come knocking on the other parent's door.

Recipients of social assistance applying for child support

It used to be that child support paid to a recipient of social assistance was "clawed back" by the government. However, since September, 2015, those receiving social assistance or disability payments are now allowed to keep child support payments.

Before September, 2015, the collection of child support payments for people on social assistance was run by the Family Maintenance Program (FMP). (This is a different organization than the Family Maintenance Enforcement Program, which enforces child support payments between parents.) FMP had the authority to pursue child support however it saw fit and could apply for orders or apply to vary child support orders on your behalf. You were required to cooperate with FMP's actions. At the time these changes were announced, the government indicated that it would still offer assistance in collecting child support even though social assistance recipients would not have their child support "clawed back", how much assistance is actually being offered is not presently known to the writers. If you have any experiences in this area, feel free to send an email to the editorial team. We can be reached at editor@clicklaw.bc.ca.

Applying for child support from a recipient of social assistance

You can apply to receive child support from a parent who is receiving social assistance, but don't expect to get much for your trouble. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $10,800 per year.

Even if you're not likely to get a lot of money out of the other parent, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to provide child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on his or her feet, than it is to apply for an original child support order. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the Family Law Act if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.

Children's right to claim child support

In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. It follows from this that if child support is the right of the child, children should be able to ask for support on their own, without having to go through a parent.

When there is an order between the parents

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 his or her parents are not complying with the order and arrears of support are owed.

When someone does not pay child support, or pays less that he or she is required to pay, arrears build up. The arrears are the sum of the money that should have been paid according to the court order 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 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 Court Order Interest Act, is owing on judgment debts.

A 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 he or she reaches the age of majority, 19 in British Columbia, and becomes an adult able to sue someone.

There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the provincial Limitation Act, the claim must be brought within 10 years of the child first being able to apply to enforce the judgment debt. In other words, the claim must be made before the child turns 29. The case that discusses this is Schmitke v. Schmitke, 1993 CanLII 642 (BC SC) a 1993 decision of the Supreme Court, in which the judge concluded that:

"...the right to bring an action for the enforcement of child maintenance is the right of the child. Since the child is 'a person under a disability' within the meaning of s. 7 of the Limitation Act, the running of time is postponed so long as she is a minor."

When there isn't an order between the parents

Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support. The explanation that follows is a bit complicated, so be patient.

First, the child cannot apply for child support under the Divorce Act, because that act only applies to spouses, defined as people who are or who used to be married to each other. Under s. 15.1 of the act, the court can only order "a spouse" to pay child support. The only other law that might apply is the Family Law Act. Section 147(1) says that "each parent and guardian of a child" is responsible for supporting that child; s.149(2)(b) says that child can apply for a support order.

Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met.

Why would the court make this assumption? Think of it like this: the Divorce Act, the Family Law Act and the Child Support Guidelines say that all of a child's parents and guardians are liable for supporting the child. In fact, s. 215 of the Criminal Code makes it an offence to fail to provide a child with the "necessaries of life." The legislation on family law issues also assumes that the payment of support by one parent under the Guidelines is not going to be a complete payment of all of the child's needs. Section 1(b) of the Guidelines says that the purpose of the Guidelines is to ensure that children benefit "from the financial means of both spouses after separation." In other words, payment according to the Guidelines child support tables are not assumed to cover all of a child's costs, and the parent receiving the support payments is assumed to contribute towards the child's needs as well.

Third, a child seeking a child support order must qualify as a child, as defined by s. 147 of the Family Law Act, in order to claim child support. Although the court cannot grant a child support order if the child doesn't qualify as a child within the meaning of the act, children under the age of 19 are under a legal disability, which means they cannot start a court proceeding and apply for child support on their own.

This leaves two options. Either the child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of his or her parents and therefore still qualifies as a "child" entitled to receive support, or the child is a minor and applies for support through a litigation guardian, formerly known as a guardian ad litem. The first option would probably work, but the second is problematic as the court must approve the appointment of litigation guardians and it would likely refuse to do so if the child still lived with one of his or her parents.

Let's look at two examples to see how this all works.

Example #1

Let's say the parents are separated and the child is living with one of his or her parents.

In a case like this, the parent with whom the child is living has the responsibility of applying for support. As the child is under the age of 19, the child cannot start a court proceeding without the assistance of a litigation guardian. However, since the parent the child is living with is responsible for applying for child support and litigation guardians must be appointed by the court, the court would be likely to refuse to appoint a litigation guardian on the basis that the application is just a smoke screen for the parent's obligation to apply on behalf of the child.

If a child is older than 19 but still qualifies as a child under s. 146 of the Family Law Act (typically because the child is ill or disabled and cannot work or because the child is going to college or university), the child could certainly apply for child support. The child is over the age of majority and is able to start an action without a litigation guardian.

The adult child will, however, have to prove that he or she is in financial need. The court will not make a support order automatically. Having a job or being in a married or unmarried spousal relationship with someone will undermine the adult child's chances of success.

Example #2

Now let's say that the child is younger than 19 and is not living with his or her parents.

In a case like this, the parents would be responsible for paying support to the child but the child would have to start an action to claim child support, and would have to be represented by a litigation guardian. Even assuming that the court is prepared to appoint a litigation guardian, getting a child support order is not necessarily a slam dunk.

There are a few cases when minor children — children under the age of majority — have been found not to be entitled to receive child support. Typically, this happens when a child has chosen to move out, has found a job, and is living independently of his or her parents. A financially self-sufficient child who has left his or her parents' home may not be entitled to receive child support payments from them, especially if the child has refused to maintain a relationship with his or her parents.

Making things worse, under s. 147(1) of the Family Law Act, children who are spouses or have voluntarily withdrawn from their parents' or guardians' charge may not be eligible for child support.

Summary

That was all a bit complicated. Here's what it boils down to:

• Children will not be able to apply for a child support order when there's an existing child support order.
• If arrears have accrued under an existing child support order, the child can apply to collect those arrears as a judgment debt under the Court Order Enforcement Act, but only after the child has turned 19. The claim must be brought within 10 years of the child becoming able to make the claim.
• Children can only claim new child support orders under the Family Law Act. They cannot apply under the Divorce Act.
• Children who live at home with both parents cannot apply for child support.
• A child who brings a claim for child support must qualify as a child within the meaning of s. 146 of the Family Law Act.
• Children who have left home and live with neither parent will have to establish financial need before the court will make a child support order. The court will not make the order automatically, and may not make the order at all if it decides that the child left home voluntarily.
• Adult children will also have to show financial need before the court will make a support order.

If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Child Support Guidelines
• Criminal Code
• Interjurisdictional Support Orders Act
• Interjurisdictional Support Orders Regulation
• Income Tax Act
• Court Order Enforcement Act
• Court Order Interest Act
• Limitation Act

Links

• Department of Justice: List of reciprocals offices by province
• The British Columbia Reciprocals Office
• Canada Revenue Agency's Interpretation Bulletin IT-99R5
• Family Maintenance Program
• Canadian Bar Association BC Branch: Script on child support
• Legal Services Society Family Law Website: What the child support guidelines are and how they work
• Legal Services Society Family Law Website: Child support

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Eugene Raponi, QC and Inga Phillips, June 6, 2014.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.