Spousal and Child Support (3:X)

A. General

Support is the financial support one person provides for another person (adult or child). This is meant to provide for that person’s reasonable needs (i.e. food, clothing, shelter, education, and medical care). Spousal support is intended to pay for basic living expenses and is highly discretionary. In contrast, child support is an obligation acquired through parenthood; it is mandatory with firm guidelines. Child support always takes precedence over spousal support if a party’s ability to provide financial support is limited.

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 Leskun v Leskun, [2006] 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; Meservy v Field, 2013 BCSC 2378). The exception to this rule is if the couple have a child(ren) together (s 3(1); CAM v MDQ, 2014 BCPC 110).

Orders for child support are almost always fixed according to the schedule of support payments set outin the 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.

Under the FLA, the most important changes are in wording. The following are some examples of new vocabulary from the FRA || FLA:

• Custody || Guardianship/Parenting Time
• Access || Parenting Time/Contact
• Maintenance || Support

B. Courts

Both the Supreme Court and the Provincial Court have the powers to grant or vary support orders made under the FRA and FLA, but only the Supreme Court can grant or vary support orders made under the DA. Only the Supreme Court can grant interim relief under the DA, but the Provincial Court can grant interim relief under the FLA.

1. Provincial Court

The Provincial (Family) Court is often the most accessible court to self represented litigants. It can deal with applications for support made under the FLA, as well with variation of previous Provincial Court child or spousal support and arrears of child or spousal support orders. Applications can be made at certain Provincial (Family) Courts for a Supreme Court Hearing.

2. Supreme Court

The Supreme Court can order interim relief under the DA or FLA or make an order for support upon the granting of a divorce order. If a Supreme Court order for support is made under the DA, that order ousts any provincial statutory jurisdiction in that matter. While obtaining interim relief from the Supreme Court is more expensive than obtaining a Provincial (Family) Court order, it can be faster if the application is urgent or if the party wishes to proceed ex parte (without notice to the other side).

C. Enforcement

1. Family Maintenance Enforcement Act (RSBC 1996, c 127) [FMEA]

The FMEA, passed in 1988, gives the provincial government extensive powers to collect support arrears including:

• a Notice of Attachment (s 17);
• 12-month garnishing orders (s 18);
• Attachment Orders (s 24); and
• Attachment of money owing by the Crown (s 25) including Income Tax refunds and Employment Insurance benefits directly from the Federal Crown.

The Family Maintentance Enforcement Program (FMEP) can only enforce support orders if the payor is in its jurisdiction or sister jurisdictions that will assist in enforcing the order. For a complete list of sister jurisdictions see https://www.fmep.gov.bc.ca/paying-or-receiving-maintenance/out-of-province-orders/other-jurisdictions/. Any person who receives a support order or separation agreement that has been filed in court may voluntarily register with the program.

2. Reciprocal Enforcement

If properly filed in BC, a support order from another jurisdiction is enforceable under the FMEA. All other Canadian jurisdictions have similar legislation and will enforce BC orders on registration in their courts. Many foreign jurisdictions will also enforce BC orders; see the table of reciprocating states in the Court Order Enforcement Act, RSBC 1996,c 78.

3. Variation of Orders

Spousal support orders may be varied where there have been changes in the needs, means, capacities and economic circumstances of each party (DA, s 17(4.1), FLA s 215(1)). The Court may also reduce the amount of support to a spouse where it finds that the spouse or former spouse “is not making reasonable efforts” to become self-sufficient. Note that for a variation application to be successful the applicant must demonstrate that there has been a “material change in circumstances” which means circumstances that, if known at the time of the agreement or Order, would have resulted in a different outcome.

There may also be a variation in child support levels provided there is a change in circumstances per the Child Support Guidelines, which include changes in the payor parent’s income (DA, s 17(4), FLA s 152). If the payor’s income has changed, a variation of the child support order is virtually automatic when one makes an application in court. Provincial Court orders made in other Canadian jurisdictions and in certain reciprocating foreign states may be varied under the Interjurisdictional Support Orders Act, SBC 2002, c 29. The Act creates a system where an application is made through the filing of prescribed documents and filed with the Reciprocals Office in British Columbia, which is responsible for transmitting the documents to the originating jurisdiction for adjudication.

Support orders made under the DA may only be varied through the provisions of sections 17, 18, and 19. In this process, someone seeking to change a support order made in another Canadian jurisdiction must apply to the courts of BC for a provisional order. The provisional order is sent to the originating jurisdiction for a second hearing to confirm the order. Unless the order is confirmed, the provisional order has no effect.

4. Agreements

The Court can enforce written agreements that provide for the payment of child or spousal support., a written agreement concerning support may be filed in the Provincial Court and in the Supreme Court. Once filed, the agreement has the effect of a court order for enforcement purposes.

D. Spousal Support

The first thing that a spouse must determine regarding spousal support is whether or not they are entitled to receive it. After that, the amount and duration of spousal support can be determined. The fundamental question in determining spousal support is whether the objectives of spousal support under the Spousal Support Advisory Guidelines [SSAG] are met. The division of assets in the divorce will impact whether or not the spouse is entitled to spousal support and will be taken into account when the court decides how much spousal support to order. It should be noted that if a party is entitled to compensatory support arising from the relationship, the receipt of significant assets in the division of assets may not result in a loss of entitlement to support (See Chutter v. Chutter, 2009 BCCA 177).

1. Legislation

a) Divorce Act [DA]

Section 15.2 of the DA creates an obligation to support a spouse. However, s 15.3(1) directs the Court to give priority to child support in any application for child and spousal support under the DA. The entire gross income (guideline income) is used to calculate child support and then any Net Disposable Income that remains (as calculated based on the incomes of both parties and taking into account taxes and other charges) is apportioned between the parties based on the length of marriage. It may be that the result of the payment of child support reduces the Net Disposable Income to very little and in those cases child support takes priority over the sharing of the NDI and there would be little to no spousal support payable. There is no limitation date under the DA.

b) Family Law Act [FLA]

The FLA aligns support considerations with the DA, permits periodic reviews to allow for changing circumstances, and provides guidelines for when a deceased spouse’s estate is obliged to continue payments. Considerations for posthumous support payments include the size of the estate and the need of the payee (s 171). Additionally, child support is to be prioritized over spousal support where a paying spouse has limited resources. (s 173). The SSAG are not referred to in the Act and remain advisory, although Courts in British Columbia give them much deference.

c) Spousal Support Advisory Guidelines

The final version of the Spousal Support Advisory Guidelines (SSAG) was published in July 2008. The SSAG do not have the force of law and are not expected to become law.

The SSAG set out two basic mathematical formulae for determining the quantum and duration of spousal support when a person’s entitlement to receive support is established: the “with children” formula when the parties have dependent children, and the “without children” formula when child support is not being paid. The “without children” formula is relatively simple, however the “with children” formula cannot be completed without the assistance of a computer program (refer to http://www.justice.gc.ca/eng/pi/pad-rpad/res/spag/ex.html).

While the SSAG have no regulatory effect and are merely “informal”, and “advisory”, they are nevertheless being used by the courts and the bar and the ranges provided by the SSAG are given strong consideration by the Court after the entitlement analysis is complete (see Yemchuk v Yemchuk, 2005 BCCA 406 and Redpath v Redpath, 2006 BCCA 338).

2. Principles of Spousal Support

a) General

There are three bases for entitlement to spousal support:

1. Compensatory (to compensate one spouse who was economically disadvantaged as a result of the role that spouse took on during the relationship) (Moge v Moge, [1992] 3 SCR 813);
2. Non-compensatory (need based) (Bracklow v Bracklow, [1999] 1 SCR 420); and
3. Contractual (i.e. if there was a marriage or cohabitation agreement setting out terms for support) (Miglin v Miglin, 2003 SCC 24).

Once a party has met the requirement of demonstrating entitlement, you move to the calculation of quantum. When determining quantum of support one factor to be considered is whether the needs of the recipient spouse have been met by the division of assets however if support is compensation based then even if the recipient receives significant assets that is not a basis to reduce support (See Chutter v Chutter, [2009] CarswellBC 1028 (BCCA)). Typically the way this is addressed is to determine what income a party can reasonably earn from the assets received on division and to take that into account in calculating the quantum of support.

b) Factors considered

Section 15.2(6) of the DA and section 161 of the FLA direct courts to consider the following objectives in determining entitlement to spousal support:

• to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;
• to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;
• to relieve any economic hardship of the spouses arising from the care of the child, beyond the duty to provide support for the child; and
• as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

Section 15.2(4) of the DA and section 162 of the FLA direct courts to consider the same factors in determining the amount and duration of spousal support, namely, the conditions, means, needs and other circumstances of each spouse, including:

• the length of time the spouses cohabited;
• the functions performed by each spouse during cohabitation; and
• any order, agreement or arrangement relating to support of either spouse.

3. Issues Related to Spousal Support

a) Employment and Income Assistance and Spousal Support

Spouses can opt into this program so that the FMEP can continue to assist in collecting the support, but still allow them to keep their support rather than having it deducted from other government support they are receiving, if any.

b) Taxes and Spousal Support

Spousal support is treated by the recipient as taxable income. The spouse who pays support is entitled to deduct the amount from income tax. The spouse who receives support is required to declare it as income, in contrast to child support which has no income tax consequences. Lump payments of support are not taxable. There are free online child support and spousal support calculators on the Internet (e.g. child support: http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp; spousal support: http://www.mysupportcalculator.ca/Calculator.aspx, http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html). It is essential that support payments be identified as such in court orders and separation agreements if the payor is to be able to claim a deduction. As a rule, oral or informal agreements are not sufficient to establish the status of payments as spousal support. Parties are permitted to enter into retroactive agreements which set out the amount paid and received in prior years for the purposes of claiming income tax relief. However any such agreement must be entered into before the end of the calendar year immediately following the year in question (e.g. if payments were made in 2012, a retroactive agreement would need to be entered into before December 31, 2013).

Other tax issues can arise if payments are made through a corporate account or if the payor has a lower tax burden than usual (i.e. aboriginal spouses or U.S. residents).

E. Child Support

1. Definition of “Child”

The definition of “child” varies slightly between the DA (s 2) and the FLA.

Under the DA, the definition of “child” is someone who is under the age of majority (19 years in B.C.) and who has not withdrawn from the parent’s charge, or who is at or over the age of majority but unable, by reason of illness, disability or other cause, to withdraw from parental charge or to obtain necessaries of life. Therefore, under the DA, there may not be an obligation to pay child support to a child under 19, if the child has already withdrawn from the parent's charge.

Under the FLA, the definition of “child” is a person who is under 19 years of age or a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessities of life or withdraw from the charge of his or her parents or guardians.

2. General

Child support is intended to be used to pay most of a child’s day-to-day expenses. The amount of child support payable is determined under the Federal Child Support Guidelines, which set support levels based on the payor’s income and the number of children to be supported and the parenting arrangements in place. Several web sites, including J.P. Boyd’s helpful site, offer online child support calculators (see J.P. Boyd’s BC Family Law Web Resource). If the paying parent lives in B.C., the child support is determined by the B.C. Child Support Tables; the appropriate table is for the province where the paying parent lives, not where the child lives.

The Court may also provide for “special or extraordinary” expenses in a Child Support Order (see s 7 of the Federal Child Support Guidelines), in addition to the basic child support order, requiring payment for other expenses such as child care, health related expenses (e.g. orthodontic treatment, hearing aids, prescription drugs, speech therapy, contact lenses and professional counselling), expenses for child care in order to maintain employment (see Bially v Bially (1997), 28 RFL (4th) 418 (Sask. QB)), extraordinary educational expenses for primary and secondary education, expenses for post-secondary education, and expenses for extracurricular activities.

Expenses for extracurricular activities must be reasonable having regard to the parents’ means, but need not be restricted to a special talent of the child. “Extraordinary” is also determined by what would be extraordinary in a household with a similar income; it depends on the lifestyle of the family.

3. Legislation

a) Divorce Act [DA]

The DA provides for support orders as a corollary to divorce under s 15.1, with the discretion to extend support for a child who is over the age of majority and is unable, by reason of illness, disability or other cause, to withdraw from their charge. If the majority-age child is otherwise unable to obtain the necessaries of life – for example, if the child is a university student – support orders may also be extended (s 2(1)).

An order for child support made under the DA has effect throughout Canada (s 14). Under s 17(1) of the DA, any court of competent jurisdiction, as defined by s 5, can vary, rescind, or suspend an order.

Children born within the marriage and adopted children are treated equally under the DA. However, some controversy remains as to whether a stepchild, for whom the respondent stood in loco parentis, qualifies for support under the DA. Child support will be assessed in light of the biological parents' support obligation.

b) Family Law Act [FLA]

Generally, sections 153 – 159 of the FLA replace section 93.3 of the FRA, but do not substantively change the provisions. The FLA continues to provide authority for the child support service and the recalculation project.

Under section 147 of the FLA, each parent and guardian of a child has a duty to provide support for the child unless the child is a spouse or is under 19 years of age and has voluntarily withdrawn from his or her parents’ or guardians’ charge, except if the child withdrew because of family violence or because the child’s circumstances were considered intolerable. For example, a child who has been incarcerated for more than one year is considered to have voluntarily withdrawn (MA v FA, 2013 BCSC 1077). If the child was removed from the family by the state (DZM v SM, 2014 BCPC 198) or refuses to visit, this is not considered voluntary withdrawal (Henderson v Bal, 2014 BCSC 1347). However, if this child returns to his or her parents’ or guardians’ charge, their duty to provide support to the child resumes. Additionally, section 147 of the FLA also states that a child’s stepparent does not have a duty to provide support for the child unless the stepparent contributed to the support of the child for at least one year and a proceeding for an order under this part is started within one year after the date the stepparent last contributed to the support of the child. Qualifying step-parents have a duty to provide child support (CLP v ND, 2014 BCPC 154). A step-parent may also be ordered to provide support if the parents are not able to provide the child with consistent and reasonable standards of living (CB v MB, 2014 BCPC 75).

If parentage is at issue, section 151 of the FLA states that the Court may make an order respecting the child’s parentage in accordance to s 31 of the FLA or make an order under s 33(2) of the FLA.

c) Child Support Guidelines

The Federal Child Support Guidelines are federal regulations that determine the amount of child support owing, and vary from province to province. The guidelines establish how much child support must be paid based on the payor’s income and the number of children for whom support is to be paid. For more information refer to the resources listed at the end of the chapter. See http://www.bclawfamilyresource.com for more information on child support tables.

d) Other Legislation

Section 215 of the Criminal Code places a legal duty on parents to provide their children with the necessaries of life until they reach the age of 16, unless the child is able to provide the necessaries of life independently.

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