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Difference between revisions of "Spousal and Child Support (3:X)"
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Spousal and Child Support (3:X) (view source)
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Other tax issues can arise if payments are made through a corporate account or if the payor has a lower tax burden than usual (i.e. aboriginal spouses or U.S. residents). | Other tax issues can arise if payments are made through a corporate account or if the payor has a lower tax burden than usual (i.e. aboriginal spouses or U.S. residents). | ||
== E. Child Support == | |||
=== 1. Definition of “Child” === | |||
The definition of “child” varies slightly between the ''Divorce Act'' (s 2) and the ''Family Law Act''. | |||
Under the ''Divorce Act'', the definition of “child” is someone who is under the age of majority (19 years in B.C.) '''and''' who has not withdrawn from the parent’s charge, or who is at or over the age of majority but unable, by reason of illness, disability or other cause, to withdraw from parental charge or to obtain necessaries of life. Therefore, under the ''Divorce Act'', there may not be an obligation to pay child support to a child under 19, if the child has already withdrawn from the parent's charge. | |||
Under the ''Family Law Act'', the definition of “child” is a person who is under 19 years of age or a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessities of life or withdraw from the charge of his or her parents or guardians. | |||
=== 2. General === | |||
Child support is intended to be used to pay most of a child’s day-to-day expenses. The amount of child support payable is determined under the Federal Child Support Guidelines, which set support levels based on the payor’s income and the number of children to be supported and the parenting arrangements in place. Several web sites, including J.P. Boyd’s helpful site, offer online child support calculators (see [[Governing Legislation and Resources for Family Law (3:I)#3. J.P. Boyd’s BC Family Law Web Resource | J.P. Boyd’s BC Family Law Web Resource]]). If the paying parent lives in B.C., the child support is determined by the B.C. Child Support Tables; the appropriate table is for the province where the paying parent lives, not where the child lives. | |||
The Court may also provide for “special or extraordinary” expenses in a Child Support Order (see s 7 of the ''Federal Child Support Guidelines''), in addition to the basic child support order, requiring payment for other expenses such as child care, health related expenses (e.g. orthodontic treatment, hearing aids, prescription drugs, speech therapy, contact lenses and professional counselling), expenses for child care in order to maintain employment (see ''Bially v Bially'' (1997), 28 RFL (4th) 418 (Sask. QB)), extraordinary educational expenses for primary and secondary education, expenses for post-secondary education, and expenses for extracurricular activities. | |||
Expenses for extracurricular activities must be reasonable having regard to the parents’ means, but need not be restricted to a special talent of the child. “Extraordinary” is also determined by what would be extraordinary in a household with a similar income; it depends on the lifestyle of the family. | |||
=== 3. Legislation === | |||
==== a) Divorce Act [DA] ==== | |||
The ''Divorce Act'' provides for support orders as a corollary to divorce under s 15.1, with the discretion to extend support for a child who is over the age of majority and is unable, by reason of illness, disability or other cause, to withdraw from their charge. If the majority-age child is otherwise unable to obtain the necessaries of life – for example, if the child is a university student – support orders may also be extended (s 2(1)). An order for child support made under the ''DA'' has effect throughout Canada (s 14). Under s 17(1) of the ''DA'', any court of competent jurisdiction, as defined by s 5, can vary, rescind, or suspend an order. Children born within the marriage and adopted children are treated equally under the ''DA''. However, some controversy remains as to whether a stepchild, for whom the respondent stood in ''loco parentis'', qualifies for support under the ''DA''. Child support will be assessed in light of the biological parents' support obligation. | |||