Difference between revisions of "Child Support"

From Clicklaw Wikibooks
Jump to navigation Jump to search
(From staging Aug 2022)
(From staging 2024)
Tag: Reverted
Line 1: Line 1:
{{JP Boyd on Family Law TOC|expanded = childsupport}}{{JPBOFL Editor Badge
{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge
|ChapterEditors = [[Bill Murphy-Dyson]] and [[Inga Phillips]]
|ChapterEditors = [[Mary Mouat|Mary Mouat, KC]] and [[Samantha Rapoport]]
}}
}}
{{Clicklawbadge
{{LSSbadge
| resourcetype = <br/>more resources on<br/>
|resourcetype = <br/> a fact sheet on  
| link = [https://www.clicklaw.bc.ca/global/search?k=child%20support child support]
|link         = [https://family.legalaid.bc.ca/bc-legal-system/court-orders/change-order-or-set-aside-agreement-made-bc/when-can-you-change-order when you can change <br/>a final order]  
}}Child support is money paid by one parent or guardian to the other to help cover the expenses associated with raising the children. The amount of child support payable is usually fixed according to tables contained in the [[Child Support Guidelines]], which sets support according to the number of children and the income of the person paying support. While there are some exceptions to the Guidelines, the amount of child support payable is almost always set using the tables.
}}Final orders, awards and agreements about arrangements for parenting and contact after separation are meant to give parents and other adults involved in children's lives a set of rules that describe how decisions affecting children are to be made, how much time each of the adults will have with the children, and when each adult's time with the children begins and ends. The purposes of rules about these things include: creating certainty about where the kids will be and when they'll be there; allowing parents to make plans for holidays, trips and special occasions well in advance; and, most importantly, reducing conflict between the adults involved in the children's lives. When one or more of the parties to an order, an award or an agreement doesn't follow those rules, these benefits are lost and it may be necessary to take steps to enforce the order, award or agreement so that everyone does the things the rules require them to do.


This section discusses the basics of child support, and child support orders or agreements under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It talks about how to get a child support order inside and outside of British Columbia. It also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support. Child support for adult children is also discussed.
The process for enforcing orders generally is discussed in the [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]] chapter, especially within the online chapter sections which are updated frequently. The process for enforcing agreements generally is discussed in the section [[Enforcing Family Law Agreement|Enforcing Agreements]] in the [[Family Law Agreements]] chapter. Under section 19.20 of the ''[[Family Law Act]]'', arbitrator's awards are enforced as if they are court orders.  


Other sections in this chapter look at the [[Child Support Guidelines|Guidelines in more detail]]. They also talk about the [[Exceptions to the Child Support Guidelines|exceptions to the Guidelines]], [[Making Changes to Child Support|how to make changes]], and [[Child Support Arrears|how to deal with arrears of child support]].
This section talks about the special processes and remedies available for enforcing orders, awards and agreements about arrangements for parenting and contact under the ''Family Law Act'', as well as the enforcement of orders under the ''[[Divorce Act]]''.


==Introduction==
==Introduction==


After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent or mortgage payment, one phone <span class="noglossary">bill</span>, one electricity <span class="noglossary">bill</span>, one gas <span class="noglossary">bill</span>, one cable <span class="noglossary">bill</span> and so forth, the same amount of income must now cover two rent payments, two phone bills, two electricity bills, two gas bills and two cable bills. If a child lives mostly with one parent, that parent will inevitably wind up paying for more of the child's expenses for things like school fees, food and clothing, as well as accommodation. Child support is intended to help distribute the cost associated with raising a child between the child's parents and other people who may be responsible for supporting the child, including stepparents.
The Canadian justice system is based on the idea that people will follow court orders and arbitration awards, and the agreements they have made, because they know it's the right thing to do. When people don't live up to their obligations, steps must sometimes be taken to make them do what an order, award or agreement requires. It's important to know, however, that neither judges nor arbitrators police their own orders and awards, to make sure everyone is doing what they're supposed to do, and that no one is keeping an eye on whether someone is living up to their obligations under agreements they've signed. When there's a problem, it's up to the parties to the order, award or agreement to do something about it.


Child support is a payment made by one parent or guardian, the ''payor'', to the other parent or guardian, the ''recipient'', to help meet the costs the recipient bears paying for the child's needs. The payment of child support is intended to maintain or improve the child's living conditions. Child support is not a supplement to spousal support; it's money that is paid for the benefit of the child, not the parent with whom the child lives. Of course, there's often some overlap between the recipient's expenses and the child’s expenses, like the cost of groceries and the cost of utilities.
Problems with the terms of an order, award or agreement about parental responsibilities or decision-making responsibilities might arise when a party to the order, award or agreement:


It's important to understand that child support is not a fee paid in exchange for time with the child. With some exceptions, such as child support for children over 19 and circumstances where the child's time is being shared equally or almost equally, child support is not related to the payor's parenting time or contact.
*takes steps or makes decisions affecting the children without first consulting the other party, when the parties share parental responsibilities or decision-making responsibilities,
*refuses to meaningfully consult with the other party about steps that must be taken or decisions that must be made, when the parties share parental responsibilities or decision-making responsibilities, or
*takes steps or makes decisions about parental responsibilities or decision-making responsibilities that are allocated to another party.


Child support is payable on the principle that all of a child's parents have a legal duty to financially contribute to the child's upbringing. The simple fact of being a parent 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 affected by a biological parent's obligation.
Problems with the terms of an order, award or agreement about parenting time or contact might arise when a party:


An order for child support can be made under section 15.1 of the federal ''[[Divorce Act]]'' or section 149 of the provincial ''[[Family Law Act]]''. Parents can agree on child support in a separation agreement, and arbitrators can make awards about child support. No matter what, the amount of support should, with only a few exceptions, satisfy the requirements of the federal [[Child Support Guidelines]].
*fails to exercise the parenting time or contact to which they are entitled,
*is constantly law picking up the children to exercise the parenting time or contact to which they are entitled,
*refuses to give the children to a party entitled to parenting time or contact without a good reason for doing so,
*is constantly late transferring the children to a party entitled to parenting time or contact,
*arranges for the children to be unavailable for the parenting time or contact another party is entitled to have with them, or
*abuses any discretion they might have to withhold the children from a party entitled to parenting time or contact.


The Guidelines contain a series of tables, particular to each province and territory, 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; they are described later in this chapter. The tables were most recently updated on 22 November 2017. For most people, the changes resulted in a small increase in the amount of child support payable.
Both the Supreme Court and the Provincial Court have the ability to enforce orders made under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'', using laws like the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' and certain parts of the ''Family Law Act'' that talk about enforcement. The Supreme Court can also enforce orders under the [https://canlii.ca/t/55dgb Supreme Court Family Rules] and the common-law rules about contempt of court. Enforcement under these laws requires making an application to court, and it's up to you to make the application.  


Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' require the court and parents or guardians to give child support priority over spousal support when both child support and spousal support might be payable. In other words, if there isn't enough money to pay both, child support will take priority. Going one step further, both child support and spousal support in most cases take priority over debt payments and other expenses, and both obligations survive the payor's bankruptcy.
The Supreme Court has the ability to enforce arbitration awards the way it enforces court orders, under section 19.20(1) of the ''Family Law Act''. This also requires making an application to court, and it's your responsibility to make this application as well.


==The ''Divorce Act''==
Both the Supreme Court and the Provincial Court have the ability to enforce agreements under the ''Family Law Act''. It won't be a surprise to learn that enforcing agreements requires making an application to court, and that it's up to you to make the application.


Child support can be ordered under section 15.1 of the ''Divorce Act'', but only if:  
It's important to know that the ''[https://canlii.ca/t/7vf2 Criminal Code]'' lists a number of criminal offences connected with orders about parenting time and contact, although I wouldn't describe these offences as options for enforcement as they require the involvement of police and "crown counsel," lawyers who work for the government and prosecute criminal offences, and aren't steps that a party to an order can take on their own. First of all, section 127 of the ''Criminal Code'' makes it an offence to fail to obey a court order other than an order for the payment of money. However, other sections of the ''Code'' describe other offences more specifically related to parenting time and contact:


*the parents, or the parent and a step-parent, are or were married to each other, and
*section 279: it is an offence to kidnap a person, including a child, with the intention of keeping the person against their will (kidnapping)
*section 280: it is an offence to take a child under age sixteen out of the possession and against the will of the child's guardian or parent (abduction of a person under sixteen)
*section 281: it is an offence for someone who is not a guardian or parent to take or entice away a child under age fourteen with the intention of depriving a guardian or parent of the child (abduction of a person under fourteen)
*section 282: it is an offence for a guardian or parent to take or entice away a child under age fourteen contrary to the terms of a parenting order with the intention of depriving a guardian or parent of the child (abduction in contravention of custody or parenting order)
*section 283: it is an offence for a guardian or parent to take or entice away a child under age fourteen, whether there is a parenting order in place or not, with the intention of depriving a guardian or parent of the child (abduction)


*at least one of the parents, or a step-parent, has lived in the province for at least one year immediately before a court proceeding started.  
It's important to read these sections of the ''Criminal Code'', as well as the defences available under sections 284 and 285, to really understand how these offences work and the circumstances in which criminal charges require the approval of the Attorney General.


A claim for orders under the ''Divorce Act'' can only be started in the Supreme Court. The Provincial Court cannot deal with claims under the ''Divorce Act''.
==Enforcement under the ''Divorce Act''==


Parents who can't apply for child support under the ''Divorce Act'' can apply for child support under the ''Family Law Act'' either in the Provincial Court or Supreme Court. 
The ''[[Divorce Act]]'' doesn't talk much about enforcing orders other than orders about child support and spousal support. All the act has to say about enforcing orders about decision-making responsibilities, parenting time and contact appears in section 20, which says this:


===Qualifying for child support===
<blockquote><tt>(2) An order made under this Act in respect of support, parenting time, decision-making responsibility or contact and a provincial child support service decision ... have legal effect throughout Canada.</tt></blockquote>
<blockquote><tt>(3) An order or decision that has legal effect throughout Canada under subsection (2) may be</tt></blockquote>
<blockquote><blockquote><tt>(a) registered in any court in a province and enforced in like manner as an order of that court; or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) enforced in a province in any other manner provided for by the laws of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.</tt></blockquote></blockquote>


In the ''Divorce Act'', children are referred to as ''children of the marriage'', and a child must fall within the Act's definition of "child of the marriage" to be eligible for support. There are a couple of important definitions in section 2(1) of the act that help determine whether a child is a child of the marriage:
In other words, a ''Divorce Act'' order about parenting arrangements and contact that's made in Nova Scotia can be registered in British Columbia and be enforced by the courts of British Columbia, and vice versa. (The ''[[Family Law Act]]'' takes the same approach to the registration and enforcement of orders made outside the province at section 75 of the act.)


<blockquote><tt>"age of majority," in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age;</tt></blockquote>
In British Columbia, ''Divorce Act'' orders are enforced by the Supreme Court under the [https://canlii.ca/t/8mcr Supreme Court Family Rules], the common-law rules about contempt of court, and the special rules that apply to contempt applications. A "contempt application" is an application for an order that someone be found "in contempt of court" because they have intentionally breached a court order, either by not doing something that the order requires them to do or by doing something that the order says they must not do. If the court decides that someone is in contempt of court, it can also decide to punish that person by, for example, ordering that they pay a fine or spend time in jail. See the discussion about contempt applications in the [[Enforcing_Orders_in_Family_Matters|Enforcing Orders]] section of the chapter [[Resolving_Family_Law_Problems_in_Court|Resolving Problems in Court]].
<blockquote><tt>"child of the marriage" means a child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><blockquote><tt>(a) is under the age of majority and who has not withdrawn from their charge, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;</tt></blockquote></blockquote>


As well, section 2(2) of the act says that:
The court's primary goal in deciding if and how to punish someone who has breached an order is to get them to comply with the order. Most of the time, the court will give someone the opportunity to "cure" their contempt by complying with the order before punishing them, or instead give them a warning that future breaches of the order will be dealt with more severely.


<blockquote><tt>For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses or former spouses includes</tt></blockquote>
The court may be more open to dealing with breaches of orders about decision-making responsibilities, parenting time and contact by changing the order instead. A schedule of parenting time or contact that is vague may be changed, or "varied," to be more specific and give all of the parties less discretion to decide how and when parenting time or contact will happen. An order about decision-making responsibilities might be changed to give a party the final say about particular decisions when the parties don't agree, or to remove a party's right to contribute to particular decisions.
<blockquote><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent.</tt></blockquote></blockquote>


Taken together, these definitions mean that:
==Enforcement under the ''Family Law Act''==


*child support can be owing from an adoptive parent, as well as a biological parent,
The Supreme Court can enforce ''[[Family Law Act]]'' orders under the [https://canlii.ca/t/8mcr Supreme Court Family Rules], the common-law rules about contempt of court, and the special rules that apply to contempt applications in the same way that it can enforce ''[[Divorce Act]]'' orders. (The Provincial Court generally cannot punish people for contempt.)
*child support can be owing from 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, age 19 in British Columbia, and
*child support can be payable after a child reaches the age of majority if the child is still financially dependent on their parents.


The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as they cannot "withdraw from the charge" of their parents. The two main reasons why a child might not be able to withdraw are because the child is going to university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider in deciding whether an adult child's academic career qualifies them as a "child of the marriage" often include:
However, the ''Family Law Act'' has rules about enforcing orders, awards and agreements that the court will usually turn to first, before deciding to deal with a problem through its contempt powers. These rules are available in the Provincial Court as well as the Supreme Court.


*the age of the child,
===Parental responsibilities===
*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 their own support through part-time work, student loans, grants, bursaries, RESPs, or other resources,
*the child's academic <span class="noglossary">performance</span> and dedication to their studies,
*the parents’ financial situations, and
*any plans the parents may have made for the child's post-secondary schooling while they were still together.


In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both parents have high incomes and had always expected, while they were together, that the child would take an advanced degree, child support can be payable for more than one program of study.
There are no special rules for enforcing orders, awards and agreements about parental responsibilities under the ''Family Law Act'' other than the general rules about enforcing orders, awards and agreements. Orders, awards and agreements about parental responsibilities are enforced like any other order, award or agreement.


Many post-secondary institutions consider that 60 percent of a full course load is “full-time," and the courts usually go along with that approach.
Section 230(2) of the ''Family Law Act'' describes the court's general enforcement powers and says this:


While the amount of support for adult children is presumed to be the Guideline table amount, section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs and other circumstances, and the financial circumstances of the child and the parents.
<blockquote><tt>(2) For the purposes of enforcing an order made under this Act, the court on application by a party may make an order to do one or more of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) require a party to give security in any form the court directs;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) require a party to pay</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the party's actions, including fees and expenses related to family dispute resolution,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the party's actions, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(iii) a fine not exceeding $5 000.</tt></blockquote></blockquote></blockquote>


===Statutory provisions===
(Remember that, under section 19.20(1) of the ''Family Law Act'', an arbitration award can be filed in court and then be enforced as if the award was a court order. Section 44(3) says the same thing about agreements about parental responsibilities.)


The primary sections of the ''[[Divorce Act]]'' dealing with child support are these:
In [https://canlii.ca/t/j4hhx A.J.F. v N.L.S.], a 2020 decision of the Supreme Court, the court talked about section 230, and section 228 about the enforcement of conduct orders, and summarized the case law to date:


*section 2: definitions
<blockquote>[85] The measures set out in ss. 228 and 230 should be resorted to when, and only to the extent, necessary and appropriate to enforce and secure compliance with orders made under the FLA. Orders under ss. 228 and 230 may be necessary to impart on one or both parties that they are bound by the FLA and must comply with court orders.</blockquote>
*section 3: the court's authority to make child support orders when a spouse is asking for a divorce order
<blockquote>[86] Although compliance with the FLA and related court orders is critical, the FLA mandates a more holistic approach to resolving family disputes that minimizes delay, formality and conflict between the parties: s. 199(1). The remedies available under ss. 228 and 230 empower the court to provide progressively more serious responses as a particular case may dictate. More importantly, a court’s objective should be to fashion a remedy that ensures compliance while addressing the specific situation before the court.</blockquote>
*section 4: the court's authority to make child support orders after the court has made a divorce order
*section 5: the court's authority to change child support orders after the court has made a divorce order
*section 15.1: child support
*section 15.3: child support has priority over spousal support
*section 17: applying to change an order


==The ''Family Law Act''==
If none of the remedies under section 230 are effective in getting a person to comply with an order, award or agreement about parental responsibilities, section 231 of the ''Family Law Act'' gives the court the power to put someone in jail for up to 30 days:


Parents and guardians can apply for child support under the ''[[Family Law Act]]'' whether they are married spouses, unmarried spouses, or were in no particular relationship with each other at all but had a child together. People other than parents can also apply for child support if they are caring for a child, including grandparents who are guardians of their grandchildren and people who have been appointed as a guardian of a child.
<blockquote><tt>(1) This section applies if</tt></blockquote>
<blockquote><blockquote><tt>(a) a person fails to comply with an order made under this Act, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the court is satisfied that no other order under this Act will be sufficient to secure the person's compliance.</tt></blockquote></blockquote>
<blockquote><tt>(2) Subject to section 188, the court may make an order that a person be imprisoned for a term of no more than 30 days.</tt></blockquote>
<blockquote><tt>(3) For the purposes of subsection (2),</tt></blockquote>
<blockquote><blockquote><tt>(a) a person must first be given a reasonable opportunity to explain his or her non-compliance and show why an order under this section should not be made,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) for the purpose of bringing a person before the court to show why an order for imprisonment should not be made, the court may issue a warrant for the person's arrest, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) imprisonment of a person under this section does not discharge any duties of the person owing under an order made under this Act.</tt></blockquote></blockquote>


Both the Supreme Court and the Provincial Court can make orders for child support under the ''Family Law Act''.
Before the court will even consider putting someone in jail under this section, it must first be satisfied that the person has in fact breached an order and that no other step under the ''Family Law Act'' is likely to get the person to comply with the order. Then, the person must be given the chance to explain why they breached the order and why they shouldn't be sent to jail.


===Qualifying for child support===
===Parenting time and contact===


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 section 146 defines ''child'', ''parent'' and ''guardian'':
The ''Family Law Act'' has special rules about enforcing orders, awards and agreements about parenting time and contact. The rules about withholding parenting time or contact from someone entitled to parenting time or contact are in sections 61 and 62 of the act, and the rules about a person's failure to exercise the parenting time or contact to which they are entitled can be found in section 63.


<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>
====When parenting time or contact is denied====
<blockquote><tt>"guardian" does not include a guardian</tt></blockquote>
<blockquote><blockquote><tt>(a) who is not a parent, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) whose only parental responsibility is respecting the child's legal and financial interests;</tt></blockquote></blockquote>
<blockquote><tt>"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147(4);</tt></blockquote>


Section 146 also gives a definition of ''stepparent'' for the definition of "parent," which mentions stepparents, and says that:
Section 61(1) of the ''[[Family Law Act]]'' allows a person with an order or agreement giving them parenting time or contact to apply for certain orders when their parenting time or contact has been "wrongfully denied" by a guardian. (Under section 19.20 of the act, arbitration awards are enforced like court orders, so this section applies to awards as well.) The orders that can be applied for are listed in section 61(2) and include orders that:


<blockquote><tt>"stepparent" means a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life.</tt></blockquote>
*the parties participate in a dispute resolution process, such as meeting with a Family Justice Counsellor or participating in parenting coordination, mediation or arbitration,
*one or more of the parties or the child attend counselling,
*the person denied parenting time or contact have make-up time with the child,
*the guardian denying parenting time or contact reimburse the person for expenses they incurred as a result of the denial, such as travel costs and child care costs,
*transfer of the child between the parties be supervised,
*the guardian denying parenting time or contact pay money into court as a guarantee that they will comply with another order made under section 61(2), and
*the guardian denying parenting time or contact report to the court.


(Remember that under the ''Family Law Act'', "spouse" includes married people as well as people who lived together, in a romantic relationship, for at least two years or for less than two years if they have a child together.)
Under section 61(2)(g), the court can also make an order that the guardian denying parenting time or contact pay up to $5,000 as a fine or to the person denied parenting time or contact.


Section 147 puts some really important limits on support for children, and on when stepparents are and aren't responsible to pay child support:
The key to section 61 is that the denial of parenting time or contact must be "wrongful." Obviously, the intentional breach of an order, award or agreement for parenting time or contact is wrongful. However, section 62(1) of the ''Family Law Act'' lists some specific, and rather reasonable, circumstances in which a denial of parenting time or contact is ''not'' wrongful, namely when:


<blockquote><tt>(1) Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote>
<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><blockquote><tt>(a) is a spouse, or</tt></blockquote></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><blockquote><tt>(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.</tt></blockquote></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>...</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(4) A child's stepparent does not have a duty to provide support for the child unless</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(a) the stepparent contributed to the support of the child for at least one year, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>


Section 149(3)(b) also says that an order can't be made against a stepparent until the stepparent and parent have separated. This means that while a stepparent and a child’s parent live together, the stepparent has no legal duty to support that child, unless the stepparent becomes a guardian of the child.  
(In this section, "the applicant" is the person who was denied parenting time or contact and is asking the court for an order under section 61(2).)


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:
It's important to know that even if a particular denial of parenting time or contact isn't "wrongful" under section 62(1), the court can still order make-up time under section 62(2).


*All parents are responsible to pay child support, regardless of the nature of the parents' relationship with each other.
If none of the remedies under section 61 are effective in getting a guardian to comply with an order, award or agreement about parenting time or contact, the person denied parenting time or contact can apply to court for one or more of the "extraordinary remdies" described in section 231 of the ''Family Law Act''. These remedies include orders that:
*Child support can be paid by stepparents and by guardians who aren't parents.
*Child support can be paid for the same child by more than one parent, guardian, and stepparent.
*A duty to pay child support can end before a child turns 19, if the child becomes a spouse or has left home and is supporting themself.
*Child support can be paid after a child turns 19 if the child is unable to withdraw from the care of their parents because of illness, disability, a reasonable delay in finishing high school, or attendance at a post-secondary school.


On that last point, the factors a court will think about in deciding whether a child's academic career continues to qualify the child for support are the same factors the court will think about under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'']], discussed above.
*the guardian be put in jail for up to 30 days, under section 231(2), and
*a peace officer "apprehend the child and take the child" to the person entitled to parenting time or contact, under sections 231(4) and 231(6).


===Stepparents and child support===
Before the court will even consider putting someone in jail or requiring that a peace officer apprehend a child under this section, it must first, under section 231(1), be satisfied that the person has in fact breached an order and that no other step under the ''Family Law Act'' is likely to get the person to comply with the order.


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, more than one person who meets the Act's definitions of "parent" and "stepparent" are required to pay child support for the same child at the same time. In fact, there are even cases in which a parent has been involved in a series of long-term relationships, each of which were long enough to create a child support obligation for each of the parent's partners.
====When parenting time or contact isn't exercised====


A 2004 case of the Supreme Court, [http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.], decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In H.J.H., 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:
Section 63 of the ''[[Family Law Act]]'' talks about the other side of the problem, when someone who has parenting time or contact fails to exercise their parenting time or contact. This is an important problem because of the emotional harm that can be caused to children when an important adult in their lives has decided not to see them, or sees them only sporadically.


*the marriage was short,
Section 63 applies when "a person fails repeatedly to exercise the parenting time or contact with the child to which the person is entitled under an agreement or order, whether or not reasonable notice was given." (Under section 19.20 of the act, arbitration awards are enforced like court orders, so this section applies to awards as well.) The orders that can be applied for are listed in section 63(1) and include orders that:
*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 a modest income, from which the stepparent was already paying support for two children from his previous marriage,
*the child's biological parent was paying child support for the child, and
*the parent had extended health and dental coverage for the child through her employment.


The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:
*the parties participate in a dispute resolution process, such as meeting with a Family Justice Counsellor or participating in parenting coordination, mediation or arbitration,
*one or more of the parties or the child attend counselling,
*transfer of the child between the parties be supervised,
*the person failing to exercise parenting time or contact reimburse the other person for expenses they incurred as a result of the failure, such as travel costs and child care costs,
*the person failing to exercise parenting time or contact pay money into court as a guarantee that they will comply with another order made under section 63(1), and
*the person failing to exercise parenting time or contact report to the court.


<blockquote><tt>If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty</tt></blockquote>
Although the court has the power to put someone in jail, under section 231(2) of the ''Family Law Act'', if none of the remedies available under section 63 are effective in getting a person to exercise the parenting time or contact to which they are entitled, the court is more likely to make the decision to simply terminate the person's entitlement to spend time with the children.
<blockquote><blockquote><tt>(a) is secondary to that of the child's parents and guardians, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) extends only as appropriate on consideration of</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) the length of time during which the child lived with the stepparent.</tt></blockquote></blockquote></blockquote>
 
In most cases, stepparents won't be let off the hook entirely. Most of the time, the court will take a biological or adoptive parent's obligation into <span class="noglossary">account</span> when figuring out how much child support a stepparent should pay, 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.
 
A few other important points come from the case law about stepparents and child support:
 
*The definition of "stepparent" includes anyone who has been the spouse of a parent and contributed to the support of the child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for a whole, continuous calendar year. The 1999 Supreme Court decision in [https://canlii.ca/t/1d290 Hagen v. Muir] talks about this issue.
*Child support obligations may end for an adult child if the child makes a decision to stop having a meaningful relationship with the parent who pays support. The 1993 Supreme Court case of [https://canlii.ca/t/1dk6h Farden v. Farden] talks about circumstances like these.
*Whether stepparents and adult children do or don't have an ongoing relationship may be important when deciding if child support should be paid and in what amount.
*Applications for child support from a stepparent under the ''Family Law Act'' must be brought within one year of the date of the stepparent's last contribution to the support of the child, and can only be made after the stepparent and parent have split up.
*What qualifies as “contribution” to the support of the child depends on the facts. Trivial or off-and-on contributions may not be enough, as the court in the 2007 Supreme Court case of [http://canlii.ca/t/1rn88 McConnell v. McConnell] discussed.
 
===Securing a child support obligation===
 
The court may make a number of additional orders when it makes an order for child support to help make sure that child support continues to be paid, including after the death of the payor. Under section 170 of the ''Family Law Act'', the court may:
 
*order that a charge be registered against property to secure a duty to pay child support,
*require a payor with life insurance to maintain their insurance policy and make the other parent or the child a beneficiary of the policy, or
*order that child support will continue to be paid after the payor's death, and be paid from the payor's estate.
 
Before the court makes an order that requires child support to be paid from the payor's estate, section 171(1) say that the court must consider:
 
*whether the recipient's need for support will survive the payor's death,
*whether the payor's estate is enough to meet the recipient's needs, taking into <span class="noglossary">account</span> 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.
 
It is important to know that, under section 26 of the ''Family Maintenance Enforcement Act'', a person who receives child support can register a charge against real property belonging to the payor, even if child support is up to date and there are no arrears.
 
===Child support when the payor dies===
 
When a payor dies, the recipient can apply to court for an order under section 171(3)(b) of the ''Family Law Act'' that the payor's support obligation will continue and will be paid from the payor's estate.
 
When a recipient applies to continue a support obligation, or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to argue against the recipient's application and the right to apply to change or stop the duty to pay child support.
 
===Statutory provisions===
 
The primary sections of the ''[[Family Law Act]]'' dealing with child support are these:
 
*section 1: general definitions
*section 146: definitions specifically about child support
*section 147: the duty to pay child support
*section 148: agreements about child support
*section 149: orders about child support
*section 150: determining how much child support should be paid
*section 152: changing orders about child support
*section 170: securing a child support obligation
*section 173: child support has priority over spousal support
 
==Getting a child support order==
 
There are five things the court has to think about before it can make a child support order:
 
#Does the person asking for the order have the right to claim child support?
#Is the child entitled to benefit from the payment of child support?
#Does the person against whom the order is sought have a duty to pay child support?
#How much child support should be paid?
#How long should child support be paid for?
 
First, the court must decide that the person applying for a child support order, the ''applicant'', is able to make the application. Usually, this is just a matter of fitting into the definitions in the legislation. To make an order under the ''[[Divorce Act]]'', the court must have jurisdiction to pronounce a divorce, which requires that the applicant must be or have been married to the person against whom the order is sought and must have lived in the province in which the application is made for at least one year. Under the ''[[Family Law Act]]'', the applicant can be anyone included in the definitions of "parent" and "guardian." 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 support, it must be made after the stepparent and parent have separated, and it must be made within one year of separation.
 
Second, the court must find that the child qualifies as a "child" under the definition in the ''Family Law Act'' or as a ''child of the marriage'' under the definition in the ''Divorce Act''. Under the ''Family Law Act'', the court must also decide that the child is not a spouse and has not withdrawn from the care of their parents or guardians.
 
It is important that the application for child support is made while the child still qualifies for child support, otherwise, the court may not have the authority to make a child support order, even a retroactive child support order. There is sometimes an exception to this general rule for applications to change child support orders made under the ''Divorce Act''; the 2015 Court of Appeal decision in [https://canlii.ca/t/gmc40 MacCarthy v. MacCarthy] and the 2017 case of [https://canlii.ca/t/hnz2p Colucci v. Colucci] from the Ontario Court of Appeal talk about this problem. However, the Supreme Court of Canada's 2020 decision in [https://canlii.ca/t/j9p0r Michel v. Graydon] said that child support orders under the ''Family Law Act'' can be changed under section 152 of the act, whether or not the child is still a "child" under the act.
 
Third, the court must find that the person against whom the claim is made has a duty to pay child support. This is also a matter of fitting into the definitions.
 
If the first three conditions have been met, the fourth decision the court must make is to figure out how much the payor should pay. The court must first decide what the payor's annual income is, using the parties' financial information, and then fix the amount of support payable according to the tables set out in the [[Child Support Guidelines]] based on the number of children and the payor's income. There are exceptions to this basic rule, which this chapter discusses in the section [[Exceptions to the Child Support Guidelines]].
 
Fifth, the court will look at how long the payor's obligation should last. This issue is not always argued about, as both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' have cut-off dates after which children are no longer eligible to receive support. Most orders and agreements say 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 stop date for support usually only crops up where the child is an adult engaged in post-secondary studies or is otherwise "unable to withdraw from the charge" of their parents.
 
The situation can be more complicated for payors who are not parents, namely stepparents and guardians who are not parents. How much child support should be paid, and for how long, depend on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less child support than what the Guidelines tables would normally require, taking into account what the biological parent is or should be paying. A recipient may be required to make a claim for child support against the biological parent before the court will make orders against a stepparent or a guardian who is not a parent.
 
===Getting an order inside British Columbia===
 
A parent or guardian who is asking for a child support order can apply for that order in either the Supreme Court or the Provincial Court. (If there are claims for divorce or dividing property, which only the Supreme Court can deal with, it usually makes sense to ask for child support in the Supreme Court. You might as well deal with everything in one court.) Whichever court the parent or guardian wants to proceed in, they must start a court proceeding. The process for starting a court proceeding is described in the chapter [[Resolving Family Law Problems in Court]], in the section [[Starting a Court Proceeding in a Family Matter]].
 
===Getting an order outside British Columbia===
 
A parent or guardian living with a child in British Columbia who wants to get child support from someone living outside of the province has three choices:
 
#start the 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 here under the ''[[Divorce Act]]'' or the ''[[Family Law Act]]'', get a child support order, and then enforce that order in the place where the other parent lives.
 
The ''Interjurisdictional Support Orders Act'' allows a person who lives in British Columbia to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out paperwork here, and gives it to the provincial [https://www.isoforms.bc.ca/ Interjurisdictional Support Services] office. A staff member will forward that package to the [http://www.justice.gc.ca/eng/fl-df/enforce-execution/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 either be the ''Divorce Act'', if the other parent is outside of Canada, or the local equivalent of British Columbia's ''Family Law Act'', if the other parent lives elsewhere in Canada.
 
The ''Interjurisdictional Support Orders Act'' process applies in every province and territory. However, only certain countries have agreed to the ''Interjurisdictional Support Orders Act'' process. If the country 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:
 
* United States of America — all of the United States, including the District of Columbia, Puerto Rico, Guam, American Samoa, and the US Virgin Islands
* Pacific Ocean — Australia, Fiji, New Zealand (including the Cook Islands), and Papua New Guinea
* Europe — Austria, Czech Republic, Germany, Norway, Slovak Republic, Swiss Confederation, Gibraltar, and United Kingdom of Great Britain and Northern Ireland
* Caribbean — Barbados and its Dependencies
* Africa — South Africa and Zimbabwe
* Asia — Hong Kong and Republic of Singapore
 
See the [http://canlii.ca/t/84vn Interjurisdictional Support Orders Regulation] for the current list.
 
==Income tax issues==
 
It used to be the case that the person paying child support could claim an income tax deduction for their support payments, while the recipient had to claim it as taxable income. Not anymore. Any child support payments made pursuant to a written agreement or court order made after 30 April 1997 are neither deductible for the payor nor taxable for the recipient.
 
The portion of a lawyer's bill attributable to obtaining, increasing, or enforcing a child support order is tax-deductible. The cost of defending a claim for child support is not deductible. Read the Canada Revenue Agency's [http://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s1/f3/s1-f3-c3-eng.html#N10C4B Income Tax Folio S1-F3-C3, Support Payments] for the fine print, and speak to an accountant to get advice to see if you qualify to write off the portion of your lawyer’s bill that relates to child support.
 
To claim this deduction, the lawyer must write a letter to the Canada Revenue Agency setting out what portion of their fees were attributable to advancing or enforcing a child support claim. If you intend to ask your lawyer for a letter like this, you should tell your lawyer as soon as possible — preferably the moment the lawyer takes your case! — so that they can keep a log of time spent on your claim for child support.
 
In a shared parenting situation, where each parent has a duty to pay child support to the other parent, the higher-income parent often just pays the difference between the higher amount they owe and the lower amount they would receive from the lower-income parent. This difference is called a ''set-off amount''. In a court order or agreement, however, it matters how this arrangement is worded. Recently, the Canada Revenue Agency has decided that if the agreement or order says that only the higher income-earning parent pays child support, the Canada Revenue Agency will treat the situation as if there is only ''one'' payor and ''one'' recipient of child support.
 
In cases like this, the Canada Revenue Agency will not allow the parents to share child tax deductions or grants, and will not allow the parents to claim the children as dependents when they file their taxes. As a result, it's a good idea to make sure that your agreement or order says that ''each'' parent pays child support to the other. And it's probably best to not even mention the set-off amount actually paid. You can do the math to figure that out yourself. An agreement might, for example, say something like this:
 
<blockquote><tt>1. The parenting arrangements for the children qualify as "shared parenting time" within the meaning of the federal Child Support Guidelines because Parent 1 and Parent 2 anticipate that the children will live with each of them not less than 40% of the time.</tt></blockquote>
<blockquote><tt>2. For the purposes of determining the amount of child support payable under the Guidelines, Parent 1 and Parent 2 agree that:</tt></blockquote>
<blockquote><blockquote><tt>(a) Parent 1’s annual income for the calculation of child support is $_______, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) Parent 2’s annual income for the calculation of child support is $_______, </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) such that Parent 1 will pay Parent 2 the sum of $_______ as child support for two children, and Parent 2 will pay Parent 1 the sum of $_______ as child support for two children.</tt></blockquote></blockquote>
 
Some lawyers and accountants even suggest that actual cheques for the full amounts should be exchanged to show that each parent pays child support to the other parent.
 
==Applying for child support from someone receiving social assistance==
 
You can apply to receive child support from a parent who is receiving social assistance or disability 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 $12,100 per year. Social assistance or disability assistance payments, which are non-taxable, would be subject to a ''gross up'' for child support calculation purposes. ("Grossing-up" is explained more in the [[Child Support Guidelines]] section of this chapter, but it's essentially a process for adjusting the income used to calculate someone's child support obligation when they don't pay as much tax on their income as other people usually do.)
 
Even if you're not likely to get a lot of money in child support, it may be a good idea to make the application and get an order, since the order will at least establish the payor's obligation to pay child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on their feet, than it is to apply for an original child support order later on. As well, some people who might be normally responsible to pay support, like a stepparent, may lose their obligation to pay support under the ''[[Family Law Act]]'' if the application isn't made within a year of the person's last contribution to the child's support. It can be critical to get an order that child support be paid early on.
 
==Children's right to claim child support==
 
In almost all cases, it is the parent who claims child support on behalf of a child, not the child. However, the right to benefit from the payment of child support belongs to the child, not the parent. As a result, if child support is the right of the child, adult children should be able to ask for support on their own, without having to go through a parent to get it.
 
===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 their parents are not complying with the order and arrears of support are owed.
 
When someone does not pay child support, or pays less than they are required to pay, "arrears" build up. Arrears are the sum of money that should have been paid according to the court order or an agreement 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, and allows 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.
 
An adult 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 they become an adult able to sue someone else, age 19 in British Columbia.
 
The ''[http://canlii.ca/t/8qx3 Limitation Act]'' does not apply to claims for arrears of child support payable under a judgment or an agreement that has been filed with the court; see section 3(1)(l) of the act.
 
===When there isn't an order between the parents===
 
Nothing prevents an adult child from applying for child support, as long as the child would normally be entitled to receive child support, but it can be a bit complicated.
 
First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to people who are "spouses," defined as people who are or who used to be married to each other; under section 15.1 of the act, the court can only order a ''spouse'' to pay child support. The only other law that might apply is the ''[[Family Law Act]]''. Section 147(1) of the ''Family Law Act'' says that "each parent and guardian of a child" is responsible for supporting that child; section 149(2)(b) says that a 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.
 
Third, a child seeking a child support order must qualify as a ''child'', as defined by section 147 of the ''[[Family Law Act]]'', in order to claim child support. While the court cannot grant a child a support order if the child doesn't qualify as a "child" within the meaning of the act, it is also the case that 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:
 
#The child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of their parents, and therefore still qualifies as a "child" entitled to receive support.
#The child is a minor, less than 19 years old, and applies for support through a "litigation guardian."
 
If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all.


==Resources and links==
==Resources and links==
Line 311: Line 162:


* ''[[Family Law Act]]''
* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/80mh Child Support Guidelines]
* ''[http://canlii.ca/t/7vf2 Criminal Code]''
* ''[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/8qx3 Limitation Act]''
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''


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


* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice's website: "Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement"] (list of reciprocals offices by province)
*[https://clicklaw.bc.ca/resource/4645 Legal Aid BC's Family Law website's information page "Court orders"]
* [http://www.isoforms.bc.ca Ministry of Attorney General Interjurisdictional Support Services] (BC reciprocals office)
**See "Change an order or set aside an agreement made in BC" and "When can you change a final order?"
* [http://www.cra-arc.gc.ca/tx/tchncl/ncmtx/fls/s1/f3/s1-f3-c3-eng.html#N10C4B Canada Revenue Agency's Income Tax Folio: S1-F3-C3, Support Payments]
* [http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services Ministry of Attorney General's website: "Family Maintenance Services"]
* [http://www.clicklaw.bc.ca/resource/1235 Dial-A-Law Script "Child support"]
* [http://www.clicklaw.bc.ca/resource/1618 Legal Aid BC's Family Law website's information page "Child & spousal support"]
** Under "Child support"




{{REVIEWED | reviewer = [[JP Boyd]], 24 August 2022}}
{{REVIEWED | reviewer = [[JP Boyd]], 25 August 2022}}


{{JP Boyd on Family Law Navbox|type=chapters}}
{{JP Boyd on Family Law Navbox|type=chapters}}

Revision as of 21:59, 15 January 2024

JP Boyd on Family Law
JP Boyd on Family Law
This page is

from the Clicklaw Wikibook JP Boyd on Family Law. See the full contents

and the list of contributors.
Getting Started
Introduction · Family Law in BC
Definitions · Legislation
Divorce Act Basics · Family Law Act Basics
Chapters
Children & Parenting
 · Rights of Children

 · Parenting Apart

 · Basic Principles

 · Moving Away after Separation

 · Children Who Resist Seeing a Parent

 · Making Changes

 · Enforcing Orders & Agreements
Court Forms & Documents
Supreme Court: Forms & Examples
Provincial Court: Forms & Examples
Other Family Law Forms & Documents

Helpful Guides & Common Questions
View See more topics

From the Author
Editorial Manifesto · Rights & Duties of Self-Represented Litigants
v • d • e
Page Editor(s)
Since 2020: JP Boyd, KC
Previously: Mary Mouat, KC and Samantha Rapoport
Read: Past contributors
LSSbadge.jpg
Legal Aid BC's
Family Law in BC website
has
a fact sheet on
when you can change
a final order.

Final orders, awards and agreements about arrangements for parenting and contact after separation are meant to give parents and other adults involved in children's lives a set of rules that describe how decisions affecting children are to be made, how much time each of the adults will have with the children, and when each adult's time with the children begins and ends. The purposes of rules about these things include: creating certainty about where the kids will be and when they'll be there; allowing parents to make plans for holidays, trips and special occasions well in advance; and, most importantly, reducing conflict between the adults involved in the children's lives. When one or more of the parties to an order, an award or an agreement doesn't follow those rules, these benefits are lost and it may be necessary to take steps to enforce the order, award or agreement so that everyone does the things the rules require them to do.

The process for enforcing orders generally is discussed in the Resolving Problems in Court chapter, especially within the online chapter sections which are updated frequently. The process for enforcing agreements generally is discussed in the section Enforcing Agreements in the Family Law Agreements chapter. Under section 19.20 of the Family Law Act, arbitrator's awards are enforced as if they are court orders.

This section talks about the special processes and remedies available for enforcing orders, awards and agreements about arrangements for parenting and contact under the Family Law Act, as well as the enforcement of orders under the Divorce Act.

Introduction

The Canadian justice system is based on the idea that people will follow court orders and arbitration awards, and the agreements they have made, because they know it's the right thing to do. When people don't live up to their obligations, steps must sometimes be taken to make them do what an order, award or agreement requires. It's important to know, however, that neither judges nor arbitrators police their own orders and awards, to make sure everyone is doing what they're supposed to do, and that no one is keeping an eye on whether someone is living up to their obligations under agreements they've signed. When there's a problem, it's up to the parties to the order, award or agreement to do something about it.

Problems with the terms of an order, award or agreement about parental responsibilities or decision-making responsibilities might arise when a party to the order, award or agreement:

  • takes steps or makes decisions affecting the children without first consulting the other party, when the parties share parental responsibilities or decision-making responsibilities,
  • refuses to meaningfully consult with the other party about steps that must be taken or decisions that must be made, when the parties share parental responsibilities or decision-making responsibilities, or
  • takes steps or makes decisions about parental responsibilities or decision-making responsibilities that are allocated to another party.

Problems with the terms of an order, award or agreement about parenting time or contact might arise when a party:

  • fails to exercise the parenting time or contact to which they are entitled,
  • is constantly law picking up the children to exercise the parenting time or contact to which they are entitled,
  • refuses to give the children to a party entitled to parenting time or contact without a good reason for doing so,
  • is constantly late transferring the children to a party entitled to parenting time or contact,
  • arranges for the children to be unavailable for the parenting time or contact another party is entitled to have with them, or
  • abuses any discretion they might have to withhold the children from a party entitled to parenting time or contact.

Both the Supreme Court and the Provincial Court have the ability to enforce orders made under the Divorce Act and the Family Law Act, using laws like the Court Order Enforcement Act and certain parts of the Family Law Act that talk about enforcement. The Supreme Court can also enforce orders under the Supreme Court Family Rules and the common-law rules about contempt of court. Enforcement under these laws requires making an application to court, and it's up to you to make the application.

The Supreme Court has the ability to enforce arbitration awards the way it enforces court orders, under section 19.20(1) of the Family Law Act. This also requires making an application to court, and it's your responsibility to make this application as well.

Both the Supreme Court and the Provincial Court have the ability to enforce agreements under the Family Law Act. It won't be a surprise to learn that enforcing agreements requires making an application to court, and that it's up to you to make the application.

It's important to know that the Criminal Code lists a number of criminal offences connected with orders about parenting time and contact, although I wouldn't describe these offences as options for enforcement as they require the involvement of police and "crown counsel," lawyers who work for the government and prosecute criminal offences, and aren't steps that a party to an order can take on their own. First of all, section 127 of the Criminal Code makes it an offence to fail to obey a court order other than an order for the payment of money. However, other sections of the Code describe other offences more specifically related to parenting time and contact:

  • section 279: it is an offence to kidnap a person, including a child, with the intention of keeping the person against their will (kidnapping)
  • section 280: it is an offence to take a child under age sixteen out of the possession and against the will of the child's guardian or parent (abduction of a person under sixteen)
  • section 281: it is an offence for someone who is not a guardian or parent to take or entice away a child under age fourteen with the intention of depriving a guardian or parent of the child (abduction of a person under fourteen)
  • section 282: it is an offence for a guardian or parent to take or entice away a child under age fourteen contrary to the terms of a parenting order with the intention of depriving a guardian or parent of the child (abduction in contravention of custody or parenting order)
  • section 283: it is an offence for a guardian or parent to take or entice away a child under age fourteen, whether there is a parenting order in place or not, with the intention of depriving a guardian or parent of the child (abduction)

It's important to read these sections of the Criminal Code, as well as the defences available under sections 284 and 285, to really understand how these offences work and the circumstances in which criminal charges require the approval of the Attorney General.

Enforcement under the Divorce Act

The Divorce Act doesn't talk much about enforcing orders other than orders about child support and spousal support. All the act has to say about enforcing orders about decision-making responsibilities, parenting time and contact appears in section 20, which says this:

(2) An order made under this Act in respect of support, parenting time, decision-making responsibility or contact and a provincial child support service decision ... have legal effect throughout Canada.

(3) An order or decision that has legal effect throughout Canada under subsection (2) may be

(a) registered in any court in a province and enforced in like manner as an order of that court; or

(b) enforced in a province in any other manner provided for by the laws of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.

In other words, a Divorce Act order about parenting arrangements and contact that's made in Nova Scotia can be registered in British Columbia and be enforced by the courts of British Columbia, and vice versa. (The Family Law Act takes the same approach to the registration and enforcement of orders made outside the province at section 75 of the act.)

In British Columbia, Divorce Act orders are enforced by the Supreme Court under the Supreme Court Family Rules, the common-law rules about contempt of court, and the special rules that apply to contempt applications. A "contempt application" is an application for an order that someone be found "in contempt of court" because they have intentionally breached a court order, either by not doing something that the order requires them to do or by doing something that the order says they must not do. If the court decides that someone is in contempt of court, it can also decide to punish that person by, for example, ordering that they pay a fine or spend time in jail. See the discussion about contempt applications in the Enforcing Orders section of the chapter Resolving Problems in Court.

The court's primary goal in deciding if and how to punish someone who has breached an order is to get them to comply with the order. Most of the time, the court will give someone the opportunity to "cure" their contempt by complying with the order before punishing them, or instead give them a warning that future breaches of the order will be dealt with more severely.

The court may be more open to dealing with breaches of orders about decision-making responsibilities, parenting time and contact by changing the order instead. A schedule of parenting time or contact that is vague may be changed, or "varied," to be more specific and give all of the parties less discretion to decide how and when parenting time or contact will happen. An order about decision-making responsibilities might be changed to give a party the final say about particular decisions when the parties don't agree, or to remove a party's right to contribute to particular decisions.

Enforcement under the Family Law Act

The Supreme Court can enforce Family Law Act orders under the Supreme Court Family Rules, the common-law rules about contempt of court, and the special rules that apply to contempt applications in the same way that it can enforce Divorce Act orders. (The Provincial Court generally cannot punish people for contempt.)

However, the Family Law Act has rules about enforcing orders, awards and agreements that the court will usually turn to first, before deciding to deal with a problem through its contempt powers. These rules are available in the Provincial Court as well as the Supreme Court.

Parental responsibilities

There are no special rules for enforcing orders, awards and agreements about parental responsibilities under the Family Law Act other than the general rules about enforcing orders, awards and agreements. Orders, awards and agreements about parental responsibilities are enforced like any other order, award or agreement.

Section 230(2) of the Family Law Act describes the court's general enforcement powers and says this:

(2) For the purposes of enforcing an order made under this Act, the court on application by a party may make an order to do one or more of the following:

(a) require a party to give security in any form the court directs;

(b) require a party to pay

(i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the party's actions, including fees and expenses related to family dispute resolution,

(ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the party's actions, or

(iii) a fine not exceeding $5 000.

(Remember that, under section 19.20(1) of the Family Law Act, an arbitration award can be filed in court and then be enforced as if the award was a court order. Section 44(3) says the same thing about agreements about parental responsibilities.)

In A.J.F. v N.L.S., a 2020 decision of the Supreme Court, the court talked about section 230, and section 228 about the enforcement of conduct orders, and summarized the case law to date:

[85] The measures set out in ss. 228 and 230 should be resorted to when, and only to the extent, necessary and appropriate to enforce and secure compliance with orders made under the FLA. Orders under ss. 228 and 230 may be necessary to impart on one or both parties that they are bound by the FLA and must comply with court orders.

[86] Although compliance with the FLA and related court orders is critical, the FLA mandates a more holistic approach to resolving family disputes that minimizes delay, formality and conflict between the parties: s. 199(1). The remedies available under ss. 228 and 230 empower the court to provide progressively more serious responses as a particular case may dictate. More importantly, a court’s objective should be to fashion a remedy that ensures compliance while addressing the specific situation before the court.

If none of the remedies under section 230 are effective in getting a person to comply with an order, award or agreement about parental responsibilities, section 231 of the Family Law Act gives the court the power to put someone in jail for up to 30 days:

(1) This section applies if

(a) a person fails to comply with an order made under this Act, and

(b) the court is satisfied that no other order under this Act will be sufficient to secure the person's compliance.

(2) Subject to section 188, the court may make an order that a person be imprisoned for a term of no more than 30 days.

(3) For the purposes of subsection (2),

(a) a person must first be given a reasonable opportunity to explain his or her non-compliance and show why an order under this section should not be made,

(b) for the purpose of bringing a person before the court to show why an order for imprisonment should not be made, the court may issue a warrant for the person's arrest, and

(c) imprisonment of a person under this section does not discharge any duties of the person owing under an order made under this Act.

Before the court will even consider putting someone in jail under this section, it must first be satisfied that the person has in fact breached an order and that no other step under the Family Law Act is likely to get the person to comply with the order. Then, the person must be given the chance to explain why they breached the order and why they shouldn't be sent to jail.

Parenting time and contact

The Family Law Act has special rules about enforcing orders, awards and agreements about parenting time and contact. The rules about withholding parenting time or contact from someone entitled to parenting time or contact are in sections 61 and 62 of the act, and the rules about a person's failure to exercise the parenting time or contact to which they are entitled can be found in section 63.

When parenting time or contact is denied

Section 61(1) of the Family Law Act allows a person with an order or agreement giving them parenting time or contact to apply for certain orders when their parenting time or contact has been "wrongfully denied" by a guardian. (Under section 19.20 of the act, arbitration awards are enforced like court orders, so this section applies to awards as well.) The orders that can be applied for are listed in section 61(2) and include orders that:

  • the parties participate in a dispute resolution process, such as meeting with a Family Justice Counsellor or participating in parenting coordination, mediation or arbitration,
  • one or more of the parties or the child attend counselling,
  • the person denied parenting time or contact have make-up time with the child,
  • the guardian denying parenting time or contact reimburse the person for expenses they incurred as a result of the denial, such as travel costs and child care costs,
  • transfer of the child between the parties be supervised,
  • the guardian denying parenting time or contact pay money into court as a guarantee that they will comply with another order made under section 61(2), and
  • the guardian denying parenting time or contact report to the court.

Under section 61(2)(g), the court can also make an order that the guardian denying parenting time or contact pay up to $5,000 as a fine or to the person denied parenting time or contact.

The key to section 61 is that the denial of parenting time or contact must be "wrongful." Obviously, the intentional breach of an order, award or agreement for parenting time or contact is wrongful. However, section 62(1) of the Family Law Act lists some specific, and rather reasonable, circumstances in which a denial of parenting time or contact is not wrongful, namely when:

(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;

(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;

(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;

(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;

(e) the applicant

(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and

(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;

(f) other circumstances the court considers to be sufficient justification for the denial.

(In this section, "the applicant" is the person who was denied parenting time or contact and is asking the court for an order under section 61(2).)

It's important to know that even if a particular denial of parenting time or contact isn't "wrongful" under section 62(1), the court can still order make-up time under section 62(2).

If none of the remedies under section 61 are effective in getting a guardian to comply with an order, award or agreement about parenting time or contact, the person denied parenting time or contact can apply to court for one or more of the "extraordinary remdies" described in section 231 of the Family Law Act. These remedies include orders that:

  • the guardian be put in jail for up to 30 days, under section 231(2), and
  • a peace officer "apprehend the child and take the child" to the person entitled to parenting time or contact, under sections 231(4) and 231(6).

Before the court will even consider putting someone in jail or requiring that a peace officer apprehend a child under this section, it must first, under section 231(1), be satisfied that the person has in fact breached an order and that no other step under the Family Law Act is likely to get the person to comply with the order.

When parenting time or contact isn't exercised

Section 63 of the Family Law Act talks about the other side of the problem, when someone who has parenting time or contact fails to exercise their parenting time or contact. This is an important problem because of the emotional harm that can be caused to children when an important adult in their lives has decided not to see them, or sees them only sporadically.

Section 63 applies when "a person fails repeatedly to exercise the parenting time or contact with the child to which the person is entitled under an agreement or order, whether or not reasonable notice was given." (Under section 19.20 of the act, arbitration awards are enforced like court orders, so this section applies to awards as well.) The orders that can be applied for are listed in section 63(1) and include orders that:

  • the parties participate in a dispute resolution process, such as meeting with a Family Justice Counsellor or participating in parenting coordination, mediation or arbitration,
  • one or more of the parties or the child attend counselling,
  • transfer of the child between the parties be supervised,
  • the person failing to exercise parenting time or contact reimburse the other person for expenses they incurred as a result of the failure, such as travel costs and child care costs,
  • the person failing to exercise parenting time or contact pay money into court as a guarantee that they will comply with another order made under section 63(1), and
  • the person failing to exercise parenting time or contact report to the court.

Although the court has the power to put someone in jail, under section 231(2) of the Family Law Act, if none of the remedies available under section 63 are effective in getting a person to exercise the parenting time or contact to which they are entitled, the court is more likely to make the decision to simply terminate the person's entitlement to spend time with the children.

Resources and links

Legislation

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 25 August 2022.


v • d • e
 
Chapters
Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
Retrieved from "https://wiki.clicklaw.bc.ca/index.php?title=Child_Support&oldid=57436"