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Child support is money paid by one parent or guardian to the other to help defray 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.
Child support is money paid by one parent or guardian to the other to help defray 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 will discuss 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.
This chapter will discuss 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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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.


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'', or a couple can agree on child support in a separation agreement. Either way, the amount of support awarded must, with only a few exceptions, conform to the rules set out in the federal Child Support Guidelines.
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]]'', or a couple can agree on child support in a separation agreement. Either way, the amount of support awarded must, 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 in the pages that follow. Certain changes to 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.
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 in the pages that follow. Certain changes to 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 precedence.
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 precedence.


==The ''Divorce Act''==
==The ''Divorce Act''==
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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 by stepparents (spouses who "stand in the place of a parent"),
#child support can be owing by 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.


On this last point, 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 his or her 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:
On this last point, 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 his or her 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:


#the age of the adult child,
#the age of the adult child,
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#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
#the child's academic performance and dedication to his or her studies,
#the child's academic performance and dedication to his or her studies,
#the spouses' financial situation, and,
#the spouses' financial situation, and
#any plans the spouses may have made for the child's post-secondary schooling while they were still together.
#any plans the spouses may have made for the child's post-secondary schooling while they were still together.


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As far as "age of majority" is concerned, keep in mind that it is the provinces which 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.
As far as "age of majority" is concerned, keep in mind that it is the provinces which 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===


The primary sections of the Divorce Act dealing with child support are these.
The primary sections of the ''[[Divorce Act]]'' dealing with child support are these.


*s. 2: definitions
*s. 2: definitions
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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''.


===Qualifying for Child Support===
===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:
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:


<blockquote><tt>"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;</tt></blockquote>
<blockquote><tt>"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;</tt></blockquote>
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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:
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:


#both parents are responsible to pay child support, no matter the nature of the parents' relationship,
*Both parents are responsible to pay child support, no matter the nature of the parents' relationship.
#child support can be payable by guardians and stepparents,
*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 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, 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, and,
*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.


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 include the following:
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 include the following:


#the age of the adult child,
*the age of the adult child,
#whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
*the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries and the like,
#the child's academic performance and dedication to his or her studies,
*the child's academic performance and dedication to his or her studies,
#the financial situations of the child's parents, guardians and stepparents, and,
*the financial situations of the child's parents, guardians and stepparents, and
#any plans the parties may have made for the child's post-secondary schooling while they were still together.
*any plans the parties 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 of the parties have a very high income and had always expected that the child would take an advanced degree, child support can be payable for more than one degree program, but this is the exception rather than the rule.
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 parties have a very high income and had always expected that the child would take an advanced degree, child support can be payable for more than one degree program, but this is the exception rather than the rule.


===Stepparents and Child Support===
===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.
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.'', a case 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 centred 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:
A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, a case 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 centred 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:


#the marriage was short,
#the marriage was short,
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#the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
#the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
#the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,
#the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,
#the child's biological parent was paying support, and,
#the child's biological parent was paying support, and
#the parent had extended health and dental coverage for the child through the parent's employment.
#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:
The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:


<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
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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.
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===
===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,
#require a payor with life insurance to maintain that policy and specify that a spouse or a child will be the beneficiary or the policy, or,
#require a payor with life insurance to maintain that policy and specify that a spouse or a child will be the beneficiary or the policy, or
#order that child support continue to be paid after the payor's death and be paid from his or her estate.
#order that child support continue to be paid after the payor's death and be paid from his or her estate.


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#whether any other means exist to meet the recipient's needs.
#whether any other means exist to meet the recipient's needs.


===Child Support When the Payor Dies===
===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 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.
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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.
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===
===Statutory provisions===


The primary sections of the ''Family Law Act'' dealing with child support are these.
The primary sections of the ''[[Family Law Act]]'' dealing with child support are these.


*s. 1: definitions
*s. 1: definitions
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*s. 173: child support has priority over spousal support
*s. 173: child support has priority over spousal support


==Getting a Child Support Order==
==Getting a child support order==


There are five things the court must consider before a child support order can be made.
There are five things the court must consider before a child support order can be made.
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*How much support should the child receive?
*How much support should the child receive?


First, the court must find 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. Under the ''Divorce Act'', the Applicant must be a spouse who has lived in the province in which they 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.
First, the court must find 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. Under the ''[[Divorce Act]]'', the applicant must be a spouse who has lived in the province in which they 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.


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.
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.
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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, such as when payors are guardians or stepparents, have their children for more than 40% of the children's time or if custody of the children is split between or shared by the parties. These and more exceptions are discussed in the page _______ .
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, such as when payors are guardians or stepparents, have their children for more than 40% of the children's time or if custody of the children is split between or shared by the parties. These and more exceptions are discussed in the page [[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.


===Getting an Order inside British Columbia===
===Getting an order inside British Columbia===


A parent or guardian seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. Whichever court the parent wants to proceed in, the parent must start a court proceeding. The process for starting a court proceeding is described in the page _______ .
A parent or guardian seeking a child support order can apply for that order in either the Supreme Court or the Provincial Court. Whichever court the parent wants to proceed in, the parent must start a court proceeding. The process for starting a court proceeding is described in the page [[Starting a Court Proceeding in a Family Matter]] under the chapter on [[Resolving Family Law Problems in Court]].


===Getting an Order outside British Columbia===
===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:
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:


#start the application process here, in British Columbia, using the provincial ''Interjurisdictional Support Orders Act'',
#start the application process here, in British Columbia, using the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'',
#start a court proceeding in the place where the other parent lives, or,
#start a court proceeding in the place where the other parent lives, or
#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.
#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 BC 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 a bunch of 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''.
The ''Interjurisdictional Support Orders Act'' allows a person who lives in BC 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 a bunch of paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html 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''.
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: South Africa, Zimbabe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom and Northern Ireland, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. (Check the Interjurisdictional Support Orders Regulation, at the BC Laws website, for the current list.)
The countries that will cooperate with a proceeding under the ''[[Interjurisdictional Support Orders Act]]'' are: South Africa, Zimbabwe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom and Northern Ireland, the United States of America and its protectorates, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand, and Barbados and its dependencies. The [http://canlii.ca/t/84vn 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.
The British Columbia Reciprocals Office, along with all of the forms required by the ''Interjurisdictional Support Orders Act'', can be found at http://www.isoforms.bc.ca.


==Income Tax Considerations==
==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. On 25 April 1997, the federal ''Income Tax Act'' was amended to do away with this rule, and now child support payments are neither deductible for the payor nor taxable for the recipient.
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. On 25 April 1997, the federal ''[http://canlii.ca/t/7vb7 Income Tax Act]'' was amended to do away with this rule, and now child support payments are neither deductible for the payor nor taxable for the recipient.


These changes do not apply to court orders or family agreements that were made before 1 May 1997, when the Child Support Guidelines came into effect. If those orders or agreements are varied at any point after 30 April 1997, however, the new rules will apply and the provisions for child support will become tax neutral.
These changes do not apply to court orders or family agreements that were made before 1 May 1997, when the [[Child Support Guidelines]] came into effect. If those orders or agreements are varied at any point after 30 April 1997, however, the new rules will apply and the provisions for child support will become tax neutral.


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.
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 [http://www.cra-arc.gc.ca/E/pub/tp/it99r5-consolid/ 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 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.
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 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==
==Child support and social assistance==


When a parent who is entitled to receive child support goes on welfare, 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.
When a parent who is entitled to receive child support goes on welfare, 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===
===Recipients of social assistance applying for child support===


If you are applying for social assistance or are receiving social assistance in British Columbia, you are required to sign a form that allows the government agency responsible for social assistance to take whatever steps are required to collect any child support payments you may be entitled to and keep the child support it collects. This is called ''assigning'' your child support rights. You may be allowed to keep a portion of the child support that the government collects in addition to your social assistance payments; your case worker will tell you how much.
If you are applying for social assistance or are receiving social assistance in British Columbia, you are required to sign a form that allows the government agency responsible for social assistance to take whatever steps are required to collect any child support payments you may be entitled to and keep the child support it collects. This is called ''assigning'' your child support rights. You may be allowed to keep a portion of the child support that the government collects in addition to your social assistance payments; your case worker will tell you how much.


The collection of child support payments for people on social assistance is run by the Family Maintenance Program. (This is a different organization than the Family Maintenance Enforcement Program which enforces child support payments between parents.) FMP has the authority to pursue child support however it sees fit and can apply for orders or apply to vary child support orders on your behalf. You will be required to co-operate with FMP's actions, but they will be responsible for managing any court applications they begin.
The collection of child support payments for people on social assistance is run by the [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program]. (This is a different organization than the Family Maintenance Enforcement Program which enforces child support payments between parents.) FMP has the authority to pursue child support however it sees fit and can apply for orders or apply to vary child support orders on your behalf. You will be required to co-operate with FMP's actions, but they will be responsible for managing any court applications they begin.


===Applying for Child Support from a Recipient of Social Assistance===
===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.
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's often 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 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.
Even if you're not likely to get a lot of money out of the other parent, it's often 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==
==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 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.
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 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===
===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.
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, 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.
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 ''[http://canlii.ca/t/84h5  Court Order Enforcement Act]'', which allows the debtor's wages and benefits to be garnished, real property and personal property to be sold to pay off a judgment debt. Interest, calculated under the ''[http://canlii.ca/t/84h6 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.
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'', a 1993 decision of the Supreme Court, in which the judge concluded that:
There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the provincial ''[http://canlii.ca/t/845q 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 ''[http://canlii.ca/t/1dkms Schmitke v. Schmitke]'', 1993 CanLII 642 (BC SC) a 1993 decision of the Supreme Court, in which the judge concluded that:


<blockquote>"...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."</blockquote>
<blockquote>"...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."</blockquote>


===When There isn't an Order Between the Parents===
===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.
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 which 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.
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 which 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.
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."
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, [http://canlii.ca/t/7vf2#sec215 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.
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.
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.
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.
Line 307: Line 311:


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.
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.
 
<!---HIDDEN
==Further Reading in this Chapter==
==Further Reading in this Chapter==


* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>
* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>
 
END HIDDEN--->
==Page Resources and Links==
==Page resources and links==


===Legislation===
===Legislation===


* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
* ''[[Family Law Act]]''
FLA, DA, ISOA, federal income tax act, CSG, COEA, COIA, limitation act
* ''[[Divorce Act]]''
* ‘’[http://canlii.ca/t/7vf2 Criminal Code]’’
* ‘’[http://canlii.ca/t/80mh Federal Child Support Guidelines]’’
* [http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]
* ‘’[http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation]’’
* ''[http://canlii.ca/t/7vb7 Income Tax Act]''
* ''[http://canlii.ca/t/84h5  Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84h6 Court Order Interest Act]''
* ''[http://canlii.ca/t/845q Limitation Act]''


===Links===
===Links===


* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
* [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html Department of Justice: List of reciprocals offices by province]
* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.cra-arc.gc.ca/E/pub/tp/it99r5-consolid/ Canada Revenue Agency's Interpretation Bulletin IT-99R5]
* [http://www.eia.gov.bc.ca/publicat/bcea/fmp.htm Family Maintenance Program]
* [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support]
* [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society Family Law Website: Child support]
 
Reciprocals office, FMP FMEP, tax bulletin, CRA
Reciprocals office, FMP FMEP, tax bulletin, CRA




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