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Difference between revisions of "Child Support"
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→The Family Law Act
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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, | A parent or guardian can apply for child support under the ''Family Law Act'' whether the parties are married spouses, unmarried spouses or in another unmarried relationship, or if they were in no particular relationship with each other at all. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been made a guardian of a child. | ||
Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''. | Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''. | ||
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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 | #a duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home, and, | ||
#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 | #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. | ||
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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, ''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: | ||
#the marriage was short | #the marriage was short, | ||
#the stepparent's relationship with the child broke down shortly into the marriage | #the stepparent's relationship with the child broke down shortly into the marriage, | ||
#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 | #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. | ||
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===Securing a Child Support Obligation=== | ===Securing a Child Support Obligation=== | ||
Under s. 170, the court may make a number of additional orders when it is making an order for child support | 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 | #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. | ||
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: | 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: | ||
#whether the recipient's need for support will survive the payor's death | #whether the recipient's need for support will survive the payor's death, | ||
#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 | #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, | ||
#whether any other means exist to meet the recipient's needs. | #whether any other means exist to meet the recipient's needs. | ||
