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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 07:18, 4 August 2017
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An application for support may be made under the ''FLA'' or ''DA'', but it is essential to look into the standards, limitations and other important differences between the Acts. The parties may also agree on the issue of support and incorporate their agreement into a written document (a separation agreement), which may have the legal status and force of a personal contract. An agreement is not completely determinative of the issue however; the Court will make orders superseding the provisions of an agreement in order to bring the obligations of parties in line with the requirements of statute. | An application for support may be made under the ''FLA'' or ''DA'', but it is essential to look into the standards, limitations and other important differences between the Acts. The parties may also agree on the issue of support and incorporate their agreement into a written document (a separation agreement), which may have the legal status and force of a personal contract. An agreement is not completely determinative of the issue however; the Court will make orders superseding the provisions of an agreement in order to bring the obligations of parties in line with the requirements of statute. | ||
In making an order for spousal support, the Court will not look to the conduct (or misconduct) of the parties, but will consider the “condition, means and other circumstances of each” in making an order. Nevertheless, in [http://canlii.ca/t/1nmrd ''Leskun v Leskun'', [2006<nowiki>]</nowiki> SCJ No25 (SCC)], the Court held that the effect of spousal misconduct on the other spouse’s ability to achieve self-sufficiency should be taken into consideration. In some cases, the Court will refer the matter to the registrar who holds an independent inquiry into the spouses’ assets, income liabilities, etc., and then recommends a “reasonable” support payment. This recommendation does not become an order until a judge confirms it. Arrangements for spousal support can be made as part of a separation agreement, granted at the time of a divorce or, if no order for support is made or denied at the time of divorce, within a reasonable time thereafter. Under the ''FLA'', the time limit is 2 years for both married and unmarried couples who have lived together in a marriage-like relationship for at least two years (s 198; [http://canlii.ca/t/g2gfj ''Meservy v Field'', 2013 BCSC 2378]). The exception to this rule is if the couple have a child(ren) together (s 3(1); [http://canlii.ca/t/g7cp6 ''CAM v MDQ'', 2014 BCPC 110]). | In making an order for spousal support, the Court will not look to the conduct (or misconduct) of the parties, but will consider the “condition, means and other circumstances of each” in making an order. Nevertheless, in [http://canlii.ca/t/1nmrd ''Leskun v Leskun'', [2006<nowiki>]</nowiki> SCJ No25 (SCC)], the Court held that the effect of spousal misconduct on the other spouse’s ability to achieve self-sufficiency should be taken into consideration. In some cases, the Court will refer the matter to the registrar who holds an independent inquiry into the spouses’ assets, income liabilities, etc., and then recommends a “reasonable” support payment. This recommendation does not become an order until a judge confirms it. Arrangements for spousal support can be made as part of a separation agreement, granted at the time of a divorce or, if no order for support is made or it is denied at the time of divorce, within a reasonable time thereafter. Under the ''FLA'', the time limit is 2 years for both married and unmarried couples who have lived together in a marriage-like relationship for at least two years (s 198; [http://canlii.ca/t/g2gfj ''Meservy v Field'', 2013 BCSC 2378]). The exception to this rule is if the couple have a child(ren) together (s 3(1); [http://canlii.ca/t/g7cp6 ''CAM v MDQ'', 2014 BCPC 110]). | ||
Orders for child support are almost always fixed according to the schedule of support payments set outin the [http://canlii.ca/t/80mh ''Child Support Guidelines''], which are based on the payer’s gross income and the number of children for whom support is being paid. There is an exception to the strict application of the Guidelines in cases where the parties share parenting | Orders for child support are almost always fixed according to the schedule of support payments set outin the [http://canlii.ca/t/80mh ''Child Support Guidelines''], which are based on the payer’s gross income and the number of children for whom support is being paid. There is an exception to the strict application of the Guidelines in cases where the parties share parenting time (i.e. where one parent has at least 40% of the time with the child(ren)). In those cases there is not simply a pay or spouse and a recipient, rather the support is typically calculated based on a set-off approach whereby each parent’s support obligation is calculated and one is set-off against the other. | ||
The Court will not grant a divorce if there are not reasonable arrangements made for child support (''DA'', s11). The level of child support is based on the income of the non-custodial parent and is set out in the Federal Child Support Guidelines. | The Court will not grant a divorce if there are not reasonable arrangements made for child support (''DA'', s11). The level of child support is based on the income of the non-custodial parent and is set out in the Federal Child Support Guidelines. | ||
