Difference between revisions of "Child Support"

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Child Support (view source)

Revision as of 19:27, 29 November 2016

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===When there isn't an order between the parents===
===When there isn't an order between the parents===


Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support. The explanation that follows is a bit complicated, so be patient.
Nothing prevents a child from applying for child support, as long as the child would normally be entitled to receive child support but it is a bit complicated.


First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under s. 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) says that "each parent and guardian of a child" is responsible for supporting that child; s.149(2)(b) says that child can apply for a support order.
First, the child cannot apply for child support under the ''[[Divorce Act]]'', because that act only applies to ''spouses'', defined as people who are or who used to be married to each other. Under s. 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) says that "each parent and guardian of a child" is responsible for supporting that child; s.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.
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.


Why would the court make this assumption? Think of it like this: the ''Divorce Act'', the ''Family Law Act'' and the [[Child Support Guidelines]] say that all of a child's parents and guardians are liable for supporting the child. In fact, [http://canlii.ca/t/7vf2#sec215 s. 215] of the ''Criminal Code'' makes it an offence to fail to provide a child with the "necessaries of life." The legislation on family law issues also assumes that the payment of support by one parent under the Guidelines is not going to be a complete payment of all of the child's needs. Section 1(b) of the Guidelines says that the purpose of the Guidelines is to ensure that children benefit "from the financial means of both spouses after separation." In other words, payment according to the Guidelines child support tables are not assumed to cover all of a child's costs, and the parent receiving the support payments is assumed to contribute towards the child's needs as well.
Third, a child seeking a child support order must qualify as a ''child'', as defined by s. 147 of the ''[[Family Law Act]]'', in order to claim child support. Although the court cannot grant a child support order if the child doesn't qualify as a child within the meaning of the Act, 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.


Third, a child seeking a child support order must qualify as a ''child'', as defined by s. 147 of the ''[[Family Law Act]]'', in order to claim child support. Although the court cannot grant a child support order if the child doesn't qualify as a child within the meaning of the act, 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. Either the child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of his or her parents and therefore still qualifies as a "child" entitled to receive support, or the child is a minor and applies for support through a ''litigation guardian'', formerly known as a guardian ''ad litem''.
 
This leaves two options. Either the child is 19 or older and applies for support as an adult child "unable to withdraw" from the care of his or her parents and therefore still qualifies as a "child" entitled to receive support, or the child is a minor and applies for support through a ''litigation guardian'', formerly known as a guardian ''ad litem''. The first option would probably work, but the second is problematic as the court must approve the appointment of litigation guardians and it would likely refuse to do so if the child still lived with one of his or her parents.
 
Let's look at two examples to see how this all works.
 
Example #1
 
<blockquote>Let's say the parents are separated and the child is living with one of his or her parents.</blockquote>
<blockquote>In a case like this, the parent with whom the child is living has the responsibility of applying for support. As the child is under the age of 19, the child cannot start a court proceeding without the assistance of a litigation guardian. However, since the parent the child is living with is responsible for applying for child support and litigation guardians must be appointed by the court, the court would be likely to refuse to appoint a litigation guardian on the basis that the application is just a smoke screen for the parent's obligation to apply on behalf of the child.</blockquote>
<blockquote>If a child is older than 19 but still qualifies as a ''child'' under s. 146 of the ''Family Law Act'' (typically because the child is ill or disabled and cannot work or because the child is going to college or university), the child could certainly apply for child support. The child is over the age of majority and is able to start an action without a litigation guardian.</blockquote>
<blockquote>The adult child will, however, have to prove that he or she is in financial need. The court will not make a support order automatically. Having a job or being in a married or unmarried spousal relationship with someone will undermine the adult child's chances of success.</blockquote>
 
Example #2
 
<blockquote>Now let's say that the child is younger than 19 and is not living with his or her parents.</blockquote>
<blockquote>In a case like this, the parents would be responsible for paying support to the child but the child would have to start an action to claim child support, and would have to be represented by a litigation guardian. Even assuming that the court is prepared to appoint a litigation guardian, getting a child support order is not necessarily a slam dunk.</blockquote>
<blockquote>There are a few cases when minor children — children under the age of majority — have been found not to be entitled to receive child support. Typically, this happens when a child has chosen to move out, has found a job, and is living independently of his or her parents. A financially self-sufficient child who has left his or her parents' home may not be entitled to receive child support payments from them, especially if the child has refused to maintain a relationship with his or her parents.</blockquote>
<blockquote>Making things worse, under s. 147(1) of the ''Family Law Act'', children who are spouses or have voluntarily withdrawn from their parents' or guardians' charge may not be eligible for child support.</blockquote>


===Summary===
===Summary===
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