Difference between revisions of "Child Support"

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| resourcetype = <br/>more resources on<br/>
| resourcetype = <br/>more resources on<br/>
| link = [http://www.clicklaw.bc.ca/global/search?k=child%20support child support]
| link = [http://www.clicklaw.bc.ca/global/search?k=child%20support child support]
}}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]] (the “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 the amount set out in the tables.
}}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]] (the 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 the amount set out in the tables.


This section discusses the basics of child support, and child support orders or agreements under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at 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. The obligation to pay child support for adult children is also discussed.
This section discusses the basics of child support, and child support orders or agreements under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. It briefly looks at 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. The obligation to pay child support for adult children is also discussed.
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After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone <span class="noglossary">bill</span>, one electricity <span class="noglossary">bill</span> and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay 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, such as stepparents.
After parents separate, they usually find that their individual financial situations have gotten worse. Instead of the family income paying for one rent payment, one phone <span class="noglossary">bill</span>, one electricity <span class="noglossary">bill</span> and so forth, the same amount of income must now cover two rent payments, two phone bills and two electricity bills. If a child lives mostly with one parent, that parent will inevitably have to pay 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, such as stepparents.


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 as a result of the child's needs, and the payment of child support consequently helps 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. Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments. Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and virtually unrelated to parenting time, or contact time.
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 as a result of the child's needs. The payment of child support helps 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.
Inevitably, however, there will be some overlap between the recipient parent’s expenses, and the child’s expenses, such as rent or mortgage payments.  
 
Child support is not a fee paid in exchange for time with the child. With some exceptions (such as child support paid for children over 19, or shared parenting situations), child support is different from and virtually unrelated to parenting time, or contact time.


Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of parenthood 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 tempered by a biological parent's obligation.
Child support is payable on the principle that both parents have a legal duty to financially contribute to their child's upbringing. The simple fact of parenthood 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 tempered by a biological parent's obligation.
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==The ''Divorce Act''==
==The ''Divorce Act''==


The ''Divorce Act'' only applies to people who are or were married to each other, including a parent and a stepparent who are married to each other. A court can only make an order for child support under the ''Divorce Act'' if it has or had the jurisdiction to make an order for the spouses' divorce: that is, the spouses must be or have been legally married, and at least one spouse must have lived in the province where the court action is started for at least one year. Applications under the ''Divorce Act'' can only be heard by the Supreme Court, not the Provincial Court.  
The ''Divorce Act'' only applies to people who are or were married to each other, including a parent and a stepparent who are married to each other. A court can only make an order for child support under the ''Divorce Act'' if it has or had the jurisdiction to make an order for the spouses' divorce: that is, the spouses must be or have been legally married, and at least one spouse must have lived in the province where the court action is started for at least one year. Applications under the ''Divorce Act'' can only be heard by the BC Supreme Court, not the Provincial Court.  


Parents who have not lived in British Columbia for one year but are married can still apply for child support under the ''Family Law Act''.
Parents who have not lived in British Columbia for one year but are married can still apply for child support under the ''Family Law Act''.
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===Qualifying for child support===
===Qualifying for child support===


In the ''Divorce Act'', children are referred to as ''children of the marriage'', and a child must fall within the Act's definition of a "child of the marriage" in order to be eligible for support. There are a couple of important definitions in s. 2(1) that apply in determining whether a child is a child of the marriage:
In the ''Divorce Act'', children are referred to as ''children of the marriage'', and a child must fall within the Act's definition of a child of the marriage in order to be eligible for support. There are a couple of important definitions in s. 2(1) that apply in determining whether a child is a child of the marriage:


<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>
<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>
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Taken together these definitions mean that:
Taken together these definitions mean that:


#child support can be owing from an adoptive parent, as well as a natural parent,
*child support can be owing from an adoptive parent, as well as a natural parent,
#child support can be owing from stepparents (spouses who "stand in the place of a parent"),
*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 (19 in British Columbia), and
*child support is payable until a child reaches the age of majority in the province where the child lives (19 in British Columbia), and
#child support can be payable after the child reaches the age of majority if the child cannot withdraw from his or her parents' care.
*child support can be payable after the child reaches the age of majority if the child cannot withdraw from their parents' care.


The ''[[Divorce Act]]'' says that an adult child can continue to be eligible for child support as long as he or she cannot "withdraw from the charge" of the parents. The two main reasons why a child might not be able to withdraw are because the child is going to college or university, or because the child has a serious, chronic illness that prevents him or her from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies him or her as a "child of the marriage" include the following:
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 the parents. The two main reasons why a child might not be able to withdraw are because the child is going to college or university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies them as a "child of the marriage" include the following:


#the age of the adult child,
*the age of the adult child,
#whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
*whether the academic program is full- or part-time, and whether the program is connected to the child's future employment,
#the child's ability to contribute to his or her own support through part-time work, student loans, grants, bursaries, RESPs or other savings, and the like,
*the child's ability to contribute to their own support through part-time work, student loans, grants, bursaries, RESPs or other savings, and the like,
#the child's academic <span class="noglossary">performance</span> and dedication to his or her studies,
*the child's academic <span class="noglossary">performance</span> and dedication to their studies,
#both parents’ financial situation, and
*both parents’ financial situation, and
#any plans the parents may have made for the child's post-secondary schooling while they were still together.
*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 a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.
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 a very high income and had always expected, during their relationship, that the child would take an advanced degree, child support can be payable for more than one degree program.
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*In the case of stepparents and adult children the existence (or non-existence) of the relationship between the parent and child may be taken into consideration when determining child support obligations and amounts.  
*In the case of stepparents and adult children the existence (or non-existence) of the relationship between the parent and child may be taken into consideration when determining child support obligations and amounts.  
*Child support can be payable by guardians and stepparents.
*Child support can be payable by guardians and stepparents.
*The definition of "stepparent" includes anyone who has been the spouse of a parent and contributed to the support of his or her child for at least one year.
*The definition of stepparent includes anyone who has been the spouse of a parent and contributed to the support of their child for at least one year.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*The phrase "contributed to the support of the child for at least one year" does not mean for one whole, continuous calendar year: ''Hagen v. Muir'', [1999] B.C.J. No. 1458.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
*Any application for child support from a stepparent must be brought within one year of the date of the stepparent's last contribution to the support of the child and can only be made after the stepparent and parent have split up.
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*Child support can be payable by more than one parent, guardian, and stepparent at the same time.  
*Child support can be payable by more than one parent, guardian, and stepparent at the same time.  
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*A duty to pay child support can end before a child turns 19 if the child becomes a spouse or leaves home.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of his or her parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondary education.
*Child support can be payable after the child turns 19 if the child is unable to withdraw from the care of their parents because of illness, a reasonable delay in finishing high school, or the child's pursuit of post-secondary education.


On this last point, the factors a court will consider in determining whether a child's academic career continues to qualify the child for support are the same factors enumerated under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'' section]] above.
On this last point, the factors a court will consider in determining whether a child's academic career continues to qualify the child for support are the same factors enumerated under the [[{{PAGENAME}}#The Divorce Act |''Divorce Act'' section]] above.
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A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, the parties had been married for less than three years when they separated. Each had been previously married, and the problem centered around the wife's child from a previous relationship and whether the husband should have to support the child. The court found that the husband, who qualified as a stepparent under the Act, was not responsible for paying support, because of the combined effect of the following factors:
A 2004 case of the British Columbia Supreme Court, ''[http://canlii.ca/t/1gfqg H.J.H. v. N.H.H.]'', 2004 BCSC 179, decided under the old ''Family Relations Act'', offers some guidance for stepparents trying to stick-handle around this issue. In this case, the parties had been married for less than three years when they separated. Each had been previously married, and the problem centered around the wife's child from a previous relationship and whether the husband should have to support the child. The court found that the husband, who qualified as a stepparent under the Act, was not responsible for paying support, because of the combined effect of the following factors:


#the marriage was short,
*the marriage was short,
#the stepparent's relationship with the child broke down shortly into the marriage,
*the stepparent's relationship with the child broke down shortly into the marriage,
#the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
*the stepparent had no ongoing relationship with the child, and any such relationship with the child was opposed by the parent,
#the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,
*the stepparent had a "modest" income, out of which the stepparent was already responsible for paying support for two children from the previous marriage,
#the child's biological parent was paying support, and
*the child's biological parent was paying support, and
#the parent had extended health and dental coverage for the child through the parent's employment.
*the parent had extended health and dental coverage for the child through the parent's employment.


The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:
The ''[[Family Law Act]]'' helps to clear up some of these confusing issues. Section 147(5) says:
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Under s. 170, the court may make a number of additional orders when it is making an order for child support that can help to ensure that child support continues to be paid, including after the death of the payor. The court may:
Under s. 170, the court may make a number of additional orders when it is making an order for child support that can help to ensure that child support continues to be paid, including after the death of the payor. The court may:


#order that a charge be registered against property,
*order that a charge be registered against property,
#require a payor with life insurance to maintain that policy and specify that the other parent or a child will be the beneficiary of the policy, or
*require a payor with life insurance to maintain that policy and specify that the other parent or a child will be the beneficiary of the policy, or
#order that child support continue to be paid after the payor's death and be paid from his or her estate.
*order that child support continue to be paid after the payor's death and be paid from their estate.


Before the court makes an order that requires child support to be paid from the payor's estate, under s. 171(1), the court must consider:
Before the court makes an order that requires child support to be paid from the payor's estate, under s. 171(1), the court must consider:


#whether the recipient's need for support will survive the payor's death,
*whether the recipient's need for support will survive the payor's death,
#whether the payor's estate is sufficient to meet the recipient's needs, taking into <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 the payor's estate is sufficient 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.
*whether any other means exist to meet the recipient's needs.


===Child support when the payor dies===
===Child support when the payor dies===


When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) that the payor's support obligation will continue and be paid from his or her estate.
When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) that the payor's support obligation will continue and be paid from their 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 defend the recipient's application or to vary or terminate a continuing obligation.
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 defend the recipient's application or to vary or terminate a continuing obligation.
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There are five things the court must consider before a child support order can be made:
There are five things the court must consider before a child support order can be made:


*Does the person asking for the order have the right to claim child support?
#Does the person asking for the order have the right to claim child support?
*Is the child entitled to receive child support?
#Is the child entitled to receive child support?
*Is the person against whom the order is sought obliged to pay child support?
#Is the person against whom the order is sought obliged to pay child support?
*How much support should the child receive?
#How much support should the child receive?
*How long should the child receive support?
#How long should the child receive support?


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 given 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 a spouse or former spouse who has 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'' or ''guardian'', and, 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 upkeep and after the stepparent and parent have separated, not later than one year after separation.
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 given 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 a spouse or former spouse who has 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'' or ''guardian'', and, 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 upkeep and after the stepparent and parent have separated, not later than one year after separation.


Second, the court must find that the child qualifies as a ''child'' as defined by the ''Family Law Act'' or as a ''child of the marriage'' as defined by the ''Divorce Act'', and under the ''Family Law Act'', the court must also find that the child is not a spouse and has not withdrawn from the care of his or her parents or guardians.
Second, the court must find that the child qualifies as a ''child'' as defined by the ''Family Law Act'' or as a ''child of the marriage'' as defined by the ''Divorce Act'', and under the ''Family Law Act'', the court must also find that the child is not a spouse and has not withdrawn from the care of their parents or guardians.


Third, the court must find that the person against whom the claim is made is liable to pay child support. This is also a matter of fitting within the definitions.
Third, the court must find that the person against whom the claim is made is liable to pay child support. This is also a matter of fitting within the definitions.


If the first three conditions have been met, the court must then figure out how much the payor should pay. The court must first make a finding as to the payor's annual income, with the help of 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]].
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 make a finding as to the payor's annual income, with the help of 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 limit themselves by providing 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 termination 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 his or her parents, and the court must then consider the factors described earlier.
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 limit themselves by providing 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 termination 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, and the court must then consider the factors described earlier.


The situation can be more complicated for payors who are not parents, that is, step-parents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a step-parent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take court proceedings against the biological parent before it will make any orders against a step-parent.
The situation can be more complicated for payors who are not parents, that is, stepparents. How much child support and for how long depends on whether or not the biological parent is or should be paying child support. Often a stepparent is required to pay less, having regard to what the biological parent is or should be paying. A receiving parent may be required to take court proceedings against the biological parent before it will make any orders against a stepparent.


===Getting an order inside British Columbia===
===Getting an order inside British Columbia===
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==Income tax considerations==
==Income tax considerations==


It used to be the case that the person paying child support could claim an income tax deduction for his or her support payments, while the recipient had to claim it as taxable income. Not so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 1997 are neither deductible for the payor nor taxable for the recipient
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 so anymore. Any child support payments made pursuant to a written agreement or court order made after April 30, 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/E/pub/tp/it99r5-consolid/ Interpretation Bulletin IT-99R5] for the fine print, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.
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/E/pub/tp/it99r5-consolid/ Interpretation Bulletin IT-99R5] for the fine print, and speak to an accountant to get advice to see if you qualify to write off a portion of the lawyer’s bill that relates to child support.


To claim this deduction, the lawyer must write a letter to the CRA setting out what portion of his or her fees were attributable to advancing or enforcing a child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case, so that he or she can keep a log of time spent on the child support claim.
To claim this deduction, the lawyer must write a letter to the CRA 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 must 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 the child support claim.


==Child support and social assistance==
==Child support and social assistance==


When a parent who is entitled to receive child support goes on social assistance, the government agrees to provide support for that parent and his or her child. If there is someone else who might be obliged to support the child, such as another parent or guardian, the provincial government would prefer that this person support the child, as they have the legal obligation to do so, rather than the taxpayer, and the government will usually come knocking on the other parent's door.
When a parent who is entitled to receive child support goes on social assistance, the government agrees to provide support for that parent and their child. If there is someone else who might be obliged to support the child, such as another parent or guardian, the provincial government would prefer that this person support the child, as they have the legal obligation to do so, rather than the taxpayer, and the government will usually come knocking on the other parent's door.


===Recipients of social assistance applying for child support===
===Recipients of social assistance applying for child support===
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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 $10,820 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.
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 $10,820 per year. Social assistance or disability assistance payments, which are non-taxable, would be grossed-up for child support purposes.


Even if you're not likely to get a lot of money out of the other parent, 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 provide child support. It's often easier to ask for an increase in the amount payable later on, when the payor is back on his or her feet, than it is to apply for an original child support order. 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.
Even if you're not likely to get a lot of money out of the other parent, 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 provide 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. 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==
==Children's right to claim child support==
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===When there is an order between the parents===
===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 his or her parents are not complying with the order and arrears of support are owed.
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 he or she is required to pay, ''arrears'' build up. The 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.
When someone does not pay child support, or pays less than they are required to pay, ''arrears'' build up. The 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.


A 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 he or she becomes an adult able to sue someone at the age of 19 in British Columbia.
A 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 at the age of 19 in British Columbia.


The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, 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 S.3 (1)(l).
The ''[http://canlii.ca/t/8qx3 Limitation Act]'', S.B.C. 2012, c.13, 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 S.3 (1)(l).
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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.
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 a 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.
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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 their 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''.


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.
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.
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* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.isoforms.bc.ca The British Columbia Reciprocals Office]
* [http://www.cra-arc.gc.ca/E/pub/tp/it99r5-consolid/ Canada Revenue Agency's Interpretation Bulletin IT-99R5]
* [http://www.cra-arc.gc.ca/E/pub/tp/it99r5-consolid/ Canada Revenue Agency's Interpretation Bulletin IT-99R5]
* [http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services Family Maintenance Program]  
* [http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/general-supplements-and-programs/family-maintenance-services Family Maintenance Program]  
* [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support]
* [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support]
* [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work]
* [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work]

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