Child Support Guidelines

From Clicklaw Wikibooks

Often simply referred to as the Guidelines, the Child Support Guidelines, SOR/97-175, is a federal regulation, adopted by all of the provinces except Quebec, that describes the rules that the courts must apply when making an order for child support.

The most important feature of the Guidelines is the child support tables that fix the amount of support payments according to the annual income of the person paying support and the number of children the support is to be paid for.

The Guidelines cover every aspect of child support, including the calculation of income, how children's special expenses are paid for, the amount of support payable when the parents have the children for an almost equal amount of time, and the amount payable when one or more of the children live full-time with each parent.

This section talks about the basic principles of the Guidelines, the sharing of special and extraordinary expenses, the calculation of income, imputing income, and the circumstances in which the income of a parent's or guardian's new partner may be taken into account. It also provides an example of the contents of a typical child support order.

Basic principles

It used to be the case that the party claiming child support, the recipient, had to show the amount of support the child needed and prove that the person being asked to pay support, the payor, had the means to pay that amount. Now, the amount of a child support order or an agreement for child support is based on the amounts set out in the tables attached to the Child Support Guidelines. The Guidelines have generally reduced the amount of disagreement between parents about the amount of child support, whether they're in court arguing about an order, or are negotiating a separation agreement. Most of the disagreement now tends to be about the income of the payor.

The Guidelines tables were most recently adjusted on 31 December 2011. The amount of child support required of lower earning parents was reduced and the amount of support for higher earning parents was increased, although none of the changes were particularly dramatic. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts, effective as of December 31, 2011.

The Guidelines' key presumption is set out in s. 3(1):

Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under s. 7.

This is, however, only a presumption, and can be challenged or rebutted, as is discussed in this chapter's next section, Exceptions to the Child Support Guidelines. In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross (before tax) annual income at the time the order is made.

Over time, of course, the payor's income may go up or down. Both the payor and the recipient can make an application to change the original order or the agreement so that the amount of child support reflects the payor's current income. The payor would typically make the application if their income has fallen, while the recipient would make the application when the payor's income has increased. To avoid a situation where parents are continually making trips back to court to seek an adjustment of child support, it's a good idea to include a term in the court order or agreement that requires both parties to regularly exchange income information in an agreement or order for child support, usually on an annual basis, so that child support can be adjusted from time to time without having to go to court.

Another important presumption in the Guidelines is that the amount of support payable is set according to the number of children to which each particular support order relates. If a payor has two children from one relationship and three from another, the first order will be based on the Guidelines amount for two children and the second will be based on the amount for three children. The payor's obligation is not based on the Guidelines amount for the total number of five children.

Finally, the amount of support payable is based only on the payor's income, unless there is a shared or a split parenting arrangement, in which case both parents’ incomes are taken into account.

Special and/or extraordinary expenses

The basic amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the child's share of lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, the parents may also be required to cover their respective portions of these other expenses, so long as they qualify as special and/or extraordinary expenses under the Guidelines.

Special and/or extraordinary expenses are defined in s. 7(1) of the Guidelines:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Section 7(1.1) clarifies (1)(d) and (1)(f), and says that for these subsections "extraordinary expenses" means:

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

Special expenses are shared between the payor and recipient. These provisions of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, both parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.

If an expense is found to qualify as a special and/or extraordinary expense under the s. 7(1) and (1.1) definitions, the court may make an order that both parties pay additional amounts, in addition to the usual Guidelines basic amount of support, to cover all or a portion of the cost of the expense.

Qualifying expenses as "special and/or extraordinary"

Just because an expense appears to fall into one of the categories listed in s. 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first.

An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families. For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense to get shared but that same $200.00 expense may be a special expense if only $100.00 per month Guideline support is being paid.

According to s. 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:

  1. the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation," and
  2. the necessity of the expense in relation to the child's best interests,

The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by s. 7(1.1). Here's a helpful summary from a 2010 case from our Supreme Court, Piper v. Piper, 2010 BCSC 1718:

"Under s. 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in s. 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in s. 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."

Reasonableness

When the court is asked to consider a particular expense, it should first decide whether the expense is necessary and reasonable according to the parties' means. For lower income parents fewer expenses will be considered reasonable.

  • Daycare will almost always be considered necessary and reasonable, provided that daycare is incurred as a result of the parent’s employment, illness, disability or education or training for employment. Daycare subsidies will be taken into account when apportioning daycare expenses between the parents as will tax-deductibility.

For parents with more money, more expenses may qualify as reasonable:

  • Cosmetic orthodontic work.
  • Dance, music and art classes, swimming, and summer day camps.
  • Less expensive team sports, like soccer, baseball and basketball.
  • Basic high-school graduation costs, such as tickets and gown or tuxedo rentals.
  • Basic post-secondary education costs, such as tuition fees for a local college or university, student fees and textbook costs.

For parents with lots of money, almost every big-ticket expense is probably going to be considered reasonable:

  • Multiple week summer camps and trips abroad.
  • Private school fees.
  • Expensive team sports, like hockey and horseback polo, and expensive solo sports like skiing and scuba diving.
  • Post-secondary education costs, including meal plans and residence costs.

Necessity

Sometimes the needs of the child will outweigh the cost of the expense to the child, and an expense will qualify as a special expense whether at a hardship to the parents or not.

  • Medical costs, including costs that aren't covered by MSP such as autism therapies.
  • Counselling services, where the counselling is necessary for the child's mental health.
  • Tutoring services, where the child needs the extra help to get through school.
  • Lessons or coaching in arts and sports, where the child has a special talent that should be nurtured.

A driver training course, for example, is unlikely to qualify as a special expense under the heading of necessity, since you can learn to drive and obtain a driver's license without it, as was decided in a 2011 Supreme Court case, M.S.J. v. J.M.J., 2011 BCSC 245. On the other hand, if a semester with Sylvan Learning Centre will mean the difference between passing or failing a grade, the tutoring would probably be considered a necessity.

Sharing qualifying expenses

Under s. 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.

The easiest way to calculate a parent's proportionate share is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.

Example #1

If one parent earns $75,000 per year and the other $25,000, the total pot available to the child is $100,000. Of that sum, the first parent contributes 75% and the second parent 25%. As a result, the first parent would be ordered to pay 75% of qualifying expenses, and the second parent 25%.

Example #2

If one parent earns $48,000 per year and the other $62,000, the total of their incomes is $110,000. The first parent's income is 43.6% of the total, and the other parent's income is 56.4% of the total. The first parent would have to pay 43.6% of all qualifying special expenses, and the second would have to pay 54.6% of those expenses.

The cost that is being shared is the net cost of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.

Note that the income of a parent's new spouse or partner may sometimes be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 Supreme Court case of Baum v. Baum, 2000 BCSC 1835 the court held that the s. 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the contribution of a parent's new partner. Also see a case of Scott v. Scott, 2000 BCSC 844.

The calculation of income

Before the court even looks at the Child Support Guidelines tables it has to decide what the payor's income is. The tables set out the amount of child support payable according to the payor's income. The Guidelines require that the court use the most up-to-date information available. Sections 15 to 20 of the Guidelines set out the rules the court must apply in determining income.

According to Rule 5-1 of the Supreme Court Family Rules and Rule 4 of the Provincial Court (Family) Rules, when someone makes an application for child support, the payor or both the payor and recipient are required to disclose their financial circumstances using a court form called a Financial Statement. Financial statements require each party to set out their income and expenses, and assets and liabilities. Certain income documents must be attached to a financial statement, typically:

  1. the last three years' of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
  2. all notices of assessment and reassessment received for the last three tax years,
  3. the party's most recent paystub, showing their earnings to date, or if the party isn't working, then their most recent WCB statement, social assistance statement, or EI statement, and
  4. business records like financial statements and corporate income tax returns, if the party has a company.

The basic rule of thumb is that a party's income for the purposes of the Guidelines is the amount stated at line 150 of the payor's most recent tax return, although there are important exceptions that apply when a person's income is from self-employment. A party's income includes all of the party's income, not just income from a job. Income might include bonuses, rental income, profit from stock options, company dividends, Workers Compensation payments, long term or short term disability payments, personal injury awards (that relate to loss of income), pension income, government benefits, interest from an investment and so forth, as well as employment and self-employment income.

Section 2(3) of the Guidelines requires that the most current income information be used; this can include a calculation of income based on paystub evidence. Most of the time income is based on the most recent tax year, since the income information for that year is complete. This means that there is usually a one-year lag between the amount of support being paid and the payor's income. However, if a payor's current income can be known with certainty, such as if the payor is an employee without bonus or commission income, child support can be determined using the payor's current income.

Government benefits

Payments from WCB, Employment Insurance, CPP, Old Age Security, and social assistance all count as income under the Guidelines. If a party is receiving these payments as a temporary substitute for employment income, the party's income may be assessed at their usual income. A temporary period on social assistance, for example, won't entitle a payor to have their income assessed at that unusually low level into the future.

Note that Canada Child Tax Benefits are not considered income for basic child support purposes, but may be taken into account when determining the sharing of special and extraordinary expenses.

Fluctuating income

Where a party's income changes from year to year for reasons beyond the party's control, such as fluctuating commission sales or bonuses that are assessed by an employer, the court may take the party's income over the past three years into consideration in setting the payor's income. In certain circumstances, the court may fix the party's income as the average of their income over the last three years.

Unexpected losses and gains

Where a payor has suffered an unexpected loss, such as a corporate loss or an investment loss, or enjoyed an unexpected gain, such as from cashing in RRSPs or selling stock, the court has the discretion to decide to take this into consideration in setting the payor's income, and potentially not consider the loss or gain, if it was a one-time occurrence.

Court awards

If a payor has received an award from a civil court proceeding such as for wrongful dismissal or for personal injury, the court may attribute the portion of the award allocated for lost wages to a payor's income. The whole amount of the award, including the parts relating to pain and suffering, will not be seen as income for the purposes of the Guidelines, just the part intended to compensate for lost wages.

Windfalls

Money received from an inheritance, the sale of a house, or a lottery win does not count as income under the Guidelines. Any interest or other investment income earned or that should reasonably be earned from the inheritance or lottery win would count as income.

Imputing income

To impute income means to attribute income to a payor above that which the payor claims they earn, usually for making a support award based on that higher amount. Typically, someone asks the court to impute income to a payor where:

  1. the payor works in the service industry, for example as a restaurant server or a taxi driver, and receives tip income that is not reported on income tax returns,
  2. the payor is intentionally unemployed or under-employed (i.e. not working to their full skills and capacity),
  3. the payor has quit or been fired from their job,
  4. the payor moves from full- to part-time work without a very good reason,
  5. the payor is self-employed and either receives unpaid benefits from their company (like a company car, paid meals or a free cell phone), or doesn't report the full amount of money taken from the company,
  6. the payor has refused to provide full and complete financial disclosure, or
  7. the payor has or will have income from a trust,
  8. the payor has hidden or appears to have hidden some of their income, and
  9. the payor is not using resources at hand that could generate income, such as a vacant house that could be rented out or savings that could be invested.

If the court decides to impute income to a payor, child support will be payable at the Guidelines rate for the higher income. The parties' proportionate responsibility to contribute to the cost of any qualifying special and/or extraordinary expenses may be based on imputed income, including income imputed to the recipient.

The court can decide to impute income for the purposes of calculating child support in other circumstances, such as when the payor is underemployed or unemployed, is income splitting with a new partner, or lives in a place with a lower tax rate than usual.

Underemployment and unemployment

Section 19(1) of the Guidelines says that:

The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse's property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

In other words, the court may decide that a payor has a different income than that which the payor says they have if:

  1. the payor has quit a job in order to avoid paying child support,
  2. the payor has taken lower-paying work than they used to have, or is capable of holding, in order to minimize the amount of child support payable, and
  3. the payor has tried to reduce their income by claiming unreasonable deductions.

If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in s. 19(1) exist. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income.

It's not enough merely to argue that one of the conditions listed in s. 19(1) exist, you have to be able to provide evidence that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, Nahu v. Chertkow, 2003 BCSC 1285 in determining whether a payor is intentionally underemployed or unemployed:

  1. the payor's education, training and work experience,
  2. the payor's previous earnings and past borrowing of funds during unemployment,
  3. the payor's work history,
  4. the payor's spending patterns and lifestyle,
  5. the payor's efforts to upgrade their education and work qualifications,
  6. the nature and quality of the payor's attempts to obtain employment, and
  7. any evidence that the underemployment or unemployment is motivated by ill will towards the recipient.

This last point, about the payor's ill will, has to do with the idea that the payor is able to earn more but chooses not to. In the 1999 Supreme Court case Hanson v. Hanson, 1999 CanLII 6307 the court had this to say on the subject:

"1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is 'no answer for a person liable to support a child to say that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor' ...

"2. When imputing income on the basis of intentional underemployment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as the availability of work, freedom to relocate and other obligations.

"3. A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be earned on the job. ... [C]ourts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.

"4. Persistence in [poorly paid] employment may entitle the court to impute income.

"5. A parent cannot be excused from his or her child support obligations [to pursue] unrealistic or unproductive career aspirations.

"6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income."

"Grossing up" income

Section 19(1) of the Guidelines also says that:

The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.

Under these sections of the Guidelines, payors who have a lower income tax obligation than usual, such as certain First Nations persons living on reserve who might pay no federal taxes, or persons who live in another country with a lower tax rate, can have their income grossed up to reflect this tax advantage when child support is determined.

The grossing up process essentially involves figuring out the amount of money the payor would have to earn to have the same after-tax income at the tax rates normally applicable to residents of British Columbia. This will result in income being imputed to the payor for the purposes of calculating child support, with a consequent increase in the amount of child support that will be payable.

The math behind grossing up someone's income is a bit complex. Essentially, the idea is to figure out the amount of income the person would have to earn before taxes to receive the amount they earn net of taxes. Think of it like this:

Say Mr. A earns $100,000 per year. As a resident of British Columbia, Mr. A pays income tax at, for example, 40%. This means that Mr. A's income, net of taxes, is $60,000 per year.

Mr. B also earns $100,000 per year. Mr. B, on the other hand, lives in Texas, and has an income tax rate of, for example, 25%. This means that Mr. B's net income is $75,000 per year.

Income for the purposes of the Guidelines would normally be calculated for both Mr. A and Mr. B at a gross income of $100,000. In reality, though, Mr. A has a lot less money after income taxes are paid than Mr. B does. Mr. B actually has a lot more money than Mr. A, and ought to pay child support based on this additional money.

Mr. B's income would be "grossed up" to figure out what income he would have to earn in BC to have an after-tax income of $75,000. Since he would pay income tax at a rate of 40% here, the court would consider Mr. B to have a gross income of $125,000 for the purposes of child support, since tax of 40% on a gross income of $125,000 leaves a net income of $75,000.

Mr. A and Mr. B both have incomes of $100,000 per year. Mr. A will pay his base amount of support at that income, but Mr. B will pay at a grossed up income of $125,000 to reflect what he would have to earn in BC to have the after-tax income of $75,000 he has living in Texas.

Grossing up a payor's income can be a bit tricky, and requires a knowledge of the income tax laws applicable to First Nations payors earning income on First Nations reserve lands and to payors earning income outside of Canada. If you have a problem in this area, you should consider retaining a lawyer to help you.

Child support and parents' new partners

Parents and guardians usually move on with their lives after the relationship that produced their children has ended. They will meet new people and enter into new romantic relationships. Parents and their new partners are often concerned about how their relationship will impact on the payor parent's obligation to pay child support. The parent might be concerned to know whether the new partner's income will be added to their income in calculating child support. The new partner will want to know whether they are now on the hook for support and must contribute to the parent's payments or towards the parent's children.

Basic child support payments

The income of a parent's new partner is not relevant to the payment of basic child support, nor is a payor's new partner obliged to pay child support. The new partner will not inherit the child support obligation in the event the payor dies, and the recipient of support won't be able to pursue the new partner for continuing or supplemental payments. If the new partner and the parent separate, however, the new partner might become obligated to pay child support as a result of them being a stepparent to the children. See the section that deals with stepparents’ obligations.

For the purposes of calculating the base amount of child support a parent must pay — that is, the parent's basic obligation under the Child Support Guidelines, before special and/or extraordinary expenses — the court will only look at the parent's income. The income of the new partner is not taken into account.

Undue hardship claims

Section 10 of the Child Support Guidelines allows parties to argue that the base amount of support set out in the Guidelines tables is too low or too high and would cause undue hardship if the table amount was paid. Payors will claim that the base amount is too high, while recipients will argue that it is too low. This chapter discusses exceptions to the Guidelines more thoroughly in the section, Exceptions to the Child Support Guidelines.

If undue hardship is claimed, the court will look at the standard of living of each parent's household, rather than the standard of living of each parent alone. This means that the court, in deciding whether there is undue hardship, will look at the total expenses and total income of each parent's household, including the income of each parent's new partner. This will not cause the new partner to be liable to pay support; it just means that their income will be taken into consideration to see whether the usual table amount of support payable is unduly high or low.

Incomes in excess of $150,000

The tables provided in the Child Support Guidelines set out the amount of support owing by payors who earn up to $150,000 per year. The Guidelines provide a mathematical formula for figuring out what parents earning more than $150,000 must pay, while payors earning less than $10,820 pay nothing.

Section 4 of the Guidelines deals with parents who earn more than $150,000 each year. Under this section, the income (or lack of income) of a parent's new partner may be taken into account in deciding whether the formula gives a fair result. The calculation of support owing by parents with incomes in excess of $150,000 is discussed in more detail in Exceptions to the Child Support Guidelines.

Section 4(b)(ii) of the Guidelines says that when considering the amount payable above the basic amount for a payor whose annual income is $150,000, the court should apply the formula but take into account:

... the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children ...

In other words, the income of a new partner can be taken into account under the general heading of "financial ability" of a spouse in determining whether the formula amount is fair.

Special expenses

Section 7 of the Guidelines allows for sharing of the children's special and/or extraordinary expenses between the parents, as discussed above. In figuring out how much a parent should have to contribute to these expenses, the court is required to take into account, among other things "the necessity and reasonableness of the expense in relation to the means of the spouses and those of the child."

A parent's new partner's income can be taken into consideration in assessing the "means of the spouses," which is exactly what the court did in the 2000 Supreme Court case of Baum v. Baum, 2000 BCSC 1835. In that decision, the court held that means of the spouses should be interpreted broadly as including all of the means available to the paying parent, including the financial contribution of their new partner.

Again, the new partner will not be responsible to pay child support or a share of the children's special expenses as a result; only the payor's obligation will be affected by the new partner's income.

Death of the payor

A number of readers have asked whether they will have any responsibility to make child support payments if their partner, who is a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.

While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a stepparent of the child under the Family Law Act. The act says that all parents, guardians, and stepparents are required to support their children, but s. 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least of one year. In other words, a new partner who marries a paying parent may have an obligation if they have contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.

The deceased parent’s estate may, however, be liable for the children and a claim could be made against the estate under the Wills Estates and Succession Act but this is beyond the scope of this service.

Agreements and orders for child support

Orders for child support

An order for child support typically contains the following elements:

  1. a statement of the names and birthdates of the children for whom support will be paid,
  2. a declaration of the payor's income,
  3. an order as to the Guidelines amount payable,
  4. an order about the exchange of income information, and
  5. a statement of the date on which child support will no longer be payable.

These elements look like this in a typical order made under the Divorce Act:

UPON the Court being advised that the children of the marriage are

Jesse Ann Doe, born on 1 March 1998, and

Sandra Alexandra Doe, born on 1 April 2000;

AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;

THIS COURT ORDERS that:

1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children of the marriage" as defined by the Divorce Act; and,

2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children of the marriage," and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children of the marriage."

Under the Family Law Act, the order would look like this:

UPON the Court being advised that the children are

Jesse Ann Doe, born on 1 March 1998, and

Sandra Alexandra Doe, born on 1 April 2000;

AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;

THIS COURT ORDERS that:

1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the Family Relations Act; and,

2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the Family Law Act, and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children."

The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.

If the Order is to include special and extraordinary expenses, the Order will usually include the receiving spouse’s income (including spousal support if that is being paid) and the percentage contribution of each parent to special expenses and will also require both parents to exchange income information each year. Disclosure of income by both parents is also required in shared and split custody cases as well.

It is a good idea to specify in a child support order whether the order is made under the Divorce Act or the Family Law Act as it could have an effect on a future variation application. For more information, see the case of Yu v. Jordan, 2012, BCCA 367.

Agreements for child support

Separation agreements, like all family law agreements, have two types of statements. The recitals are statements that talk about the parties and their relationship. They explain the parties' background and why they signed their agreement. The operative clauses of an agreement are statements that say what each party has promised to do.

The recitals to a separation agreement about child support would include statements like these:

D. Jane Doe is a plumber working for ABC Plumbing, earning about $72,000 per year.

E. John Doe is a graphic artist working for Sunny Skies Art and Design, earning about $40,000 per year.

F. Jane and John have two children, Jesse, who is 15, and Sandra who is 13.

The operative clauses about child support might say something like this:

15. Jane will pay child support to John in the amount of $1,092 per month, beginning on 1 April 2013 and continuing on the first day of each month thereafter while Jesse and Sandra remain "children" as defined by the Family Law Act.

16. Jane will give John a copy of her tax return by no later than May 31 each year and will also give John a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of receiving it each year for so long as the children are still "children" as defined by the Family Law Act.

Both court orders and separation agreements should include the children’s full names, birth dates, the amounts of basic child support and special expenses, the date for the commencement of those payments and the Act under which the child support order is made. Those details are important so that the court orders and agreements can be enforced.

Child support tables and calculators

The simplified Child Support Guidelines Tables for British Columbia are available from the website of the federal Department of Justice. The federal government has published an online child support calculator.

The provincial government also operates the BC Child Support Info Line which offers free information about child support and the child support tables. Contact the Info Line at:

Lower Mainland: 604-660-2192
Outside the Lower Mainland: 888-216-2211

Resources and links

Legislation

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by William Murphy-Dyson and Inga Phillips, July 19, 2018.


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.
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