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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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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= July 12, 2023}} | ||
{{LSLAP Manual TOC|expanded = family}} | {{LSLAP Manual TOC|expanded = family}} | ||
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=== 1. Family Maintenance Enforcement Act (RSBC 1996, c 127) [FMEA] === | === 1. Family Maintenance Enforcement Act (RSBC 1996, c 127) [FMEA] === | ||
The [ | The [https://canlii.ca/t/5571n ''FMEA''], passed in 1988, gives the provincial government extensive powers to collect support arrears including: | ||
*A Notice of Attachment (s 17); | *A Notice of Attachment (s 17); | ||
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== D. Spousal Support == | == D. Spousal Support == | ||
The first thing that a spouse must determine regarding spousal support is whether or not they are entitled to receive it. After that, the amount and duration of spousal support can be determined. The fundamental question in determining spousal support is whether the objectives of spousal support under the [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html ''Spousal Support Advisory Guidelines'' [SSAG<nowiki>]</nowiki>] are met. The division of assets in the divorce will impact whether or not the spouse is entitled to spousal support and will be taken into account when the court decides how much spousal support to order. Although it should be noted that if a party is entitled to compensatory support arising from the relationship, the receipt of significant assets in the division of assets may not result in a loss of entitlement to support (See [http://canlii.ca/t/237r7 ''Chutter v. Chutter'', 2009 BCCA 177]). | The first thing that a spouse must determine regarding spousal support is whether or not they are entitled to receive it. After that, the amount and duration of spousal support can be determined. The fundamental question in determining spousal support is whether the objectives of spousal support under the [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html ''Spousal Support Advisory Guidelines'' [SSAG<nowiki>]</nowiki>] are met. The division of assets in the divorce will impact whether or not the spouse is entitled to spousal support and will be taken into account when the court decides how much spousal support to order. Although it should be noted that if a party is entitled to compensatory support arising from the relationship, the receipt of significant assets in the division of assets may not result in a loss of entitlement to support (See [http://canlii.ca/t/237r7 ''Chutter v. Chutter'', 2009 BCCA 177]). | ||
Judges often base their decisions about spousal support on the Guidelines, and family lawyers often base their advice to clients on the Guidelines. It can be found at https://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html . | |||
A “User’s Guide” written by the County of Carleton Law Association can be found at https://canlii.ca/t/srtg . | |||
=== 1. Legislation === | === 1. Legislation === | ||
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The final version of the [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html ''Spousal Support Advisory Guidelines'' (''SSAG'')] was published in July 2008. The ''SSAG'' do not have the force of law and are not expected to become law. | The final version of the [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html ''Spousal Support Advisory Guidelines'' (''SSAG'')] was published in July 2008. The ''SSAG'' do not have the force of law and are not expected to become law. | ||
The ''SSAG'' set out two basic mathematical formulae for determining the quantum and duration of spousal support when a person’s entitlement to receive support is established: the “with children” formula when the parties have dependent children, and the “without children” formula when child support is not being paid. The “without children” formula is relatively simple. However, the “with children” formula cannot be completed without the assistance of a computer program | The ''SSAG'' set out two basic mathematical formulae for determining the quantum and duration of spousal support when a person’s entitlement to receive support is established: the “with children” formula when the parties have dependent children, and the “without children” formula when child support is not being paid. The “without children” formula is relatively simple. However, the “with children” formula cannot be completed without the assistance of a computer program. | ||
While the ''SSAG'' have no regulatory effect and are merely “informal”, and “advisory”, they are nevertheless being used by the courts and the bar and the ranges provided by the SSAG are given strong consideration by the Court after the entitlement analysis is complete (see [http://canlii.ca/t/1lb8m ''Yemchuk v Yemchuk'', 2005 BCCA 406] and [http://canlii.ca/t/1nwzz ''Redpath v Redpath'', 2006 BCCA 338]). | While the ''SSAG'' have no regulatory effect and are merely “informal”, and “advisory”, they are nevertheless being used by the courts and the bar and the ranges provided by the SSAG are given strong consideration by the Court after the entitlement analysis is complete (see [http://canlii.ca/t/1lb8m ''Yemchuk v Yemchuk'', 2005 BCCA 406] and [http://canlii.ca/t/1nwzz ''Redpath v Redpath'', 2006 BCCA 338]). | ||
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==== b) Taxes and Spousal Support ==== | ==== b) Taxes and Spousal Support ==== | ||
Spousal support is treated by the recipient as taxable income. The spouse who pays support is entitled to deduct the amount from income tax. The spouse who receives support is required to declare it as income, in contrast to child support which has no income tax consequences. Lump payments of support are not taxable. There are free online child support and spousal support calculators on the Internet: | Spousal support is treated by the recipient as taxable income. The spouse who pays support is entitled to deduct the amount from income tax. The spouse who receives support is required to declare it as income, in contrast to child support which has no income tax consequences. Lump payments of support are not taxable. There are free online child support and spousal support calculators on the Internet, like the Child Support Table Look-Up (http://www.justice.gc.ca/eng/fl-df/child-enfant/cst-orpe.html) and My Support Calculator (https://www.mysupportcalculator.ca/). | ||
e. | It is essential that support payments be identified as such in court orders and separation agreements if the payor is to be able to claim a deduction. As a rule, oral or informal agreements are not sufficient to establish the status of payments as spousal support. Parties are permitted to enter into retroactive agreements which set out the amount paid and received in prior years for the purposes of claiming income tax relief. However, any such agreement must be entered into before the end of the calendar year immediately following the year in question (i.e. if payments were made in 2012, a retroactive agreement would need to be entered into before December 31, 2013). | ||
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). | |||
=== 4. Limitation Period === | === 4. Limitation Period === | ||
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=== 2. General === | === 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 | 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 websites, 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., child support is determined by the B.C. [http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp 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 | 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 [http://canlii.ca/t/1nss7 ''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. | 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. | ||
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Under section 147 of the ''FLA'', each parent and guardian of a child has a duty to provide support for the child unless the child is a spouse or is under 19 years of age and has voluntarily withdrawn from their parents’ or guardians’ charge, except if the child withdrew because of family violence or because the child’s circumstances were considered intolerable. For example, a child who has been incarcerated for more than one year is considered to have voluntarily withdrawn ([http://canlii.ca/t/fzchl ''MA v FA'', 2013 BCSC 1077]). If the child was removed from the family by the state ([http://canlii.ca/t/g91cr ''D.Z.M. v S.M. & N.E.'', 2014 BCPC 198]) or refuses to visit, this is not considered voluntary withdrawal ([http://canlii.ca/t/g83qv ''Henderson v Bal'', 2014 BCSC 1347]). However, if this child returns to their parents’ or guardians’ charge, their duty to provide support to the child resumes. Additionally, section 147 of the ''FLA'' also states that a child’s stepparent does not have a duty to provide support for the child unless the stepparent contributed to the support of the child for at least one year and a proceeding for an order under this part is started within one year after the date the stepparent last contributed to the support of the child. Qualifying step-parents have a duty to provide child support ([http://canlii.ca/t/g82v2 ''CLP v ND'', 2014 BCPC 154]). A step-parent may also be ordered to provide support if the parents are not able to provide the child with consistent and reasonable standards of living ([http://canlii.ca/t/g6r8f ''CB v MB'', 2014 BCPC 75]). | Under section 147 of the ''FLA'', each parent and guardian of a child has a duty to provide support for the child unless the child is a spouse or is under 19 years of age and has voluntarily withdrawn from their parents’ or guardians’ charge, except if the child withdrew because of family violence or because the child’s circumstances were considered intolerable. For example, a child who has been incarcerated for more than one year is considered to have voluntarily withdrawn ([http://canlii.ca/t/fzchl ''MA v FA'', 2013 BCSC 1077]). If the child was removed from the family by the state ([http://canlii.ca/t/g91cr ''D.Z.M. v S.M. & N.E.'', 2014 BCPC 198]) or refuses to visit, this is not considered voluntary withdrawal ([http://canlii.ca/t/g83qv ''Henderson v Bal'', 2014 BCSC 1347]). However, if this child returns to their parents’ or guardians’ charge, their duty to provide support to the child resumes. Additionally, section 147 of the ''FLA'' also states that a child’s stepparent does not have a duty to provide support for the child unless the stepparent contributed to the support of the child for at least one year and a proceeding for an order under this part is started within one year after the date the stepparent last contributed to the support of the child. Qualifying step-parents have a duty to provide child support ([http://canlii.ca/t/g82v2 ''CLP v ND'', 2014 BCPC 154]). A step-parent may also be ordered to provide support if the parents are not able to provide the child with consistent and reasonable standards of living ([http://canlii.ca/t/g6r8f ''CB v MB'', 2014 BCPC 75]). | ||
If parentage is at issue, section 151 of the ''FLA'' states that the Court may make an order respecting the child’s parentage in accordance | If parentage is at issue, section 151 of the ''FLA'' states that the Court may make an order respecting the child’s parentage in accordance with s 31 of the ''FLA'' or make an order under s 33(2) of the ''FLA''. | ||
==== c) Child Support Guidelines ==== | ==== c) Child Support Guidelines ==== | ||
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Vancouver, B.C. V6B 3S3 | Vancouver, B.C. V6B 3S3 | ||
In BC, Family Justice Counsellors | In BC, Family Justice Counsellors can track the status of Interjurisdictional Support Order (ISO) applications. If an applicant has questions on the status of their ISO application, they can talk to a Family Justice Counsellor at their local Family Justice Centre. | ||
To find the nearest Centre, contact Service BC through a phone call (1-800-663-7867 or 604-660-2421) or text message (1-604-660-2421) between 7:30 a.m. and 5:00 p.m. PDT, Monday to Friday, and ask to be transfer or directed to a Family Justice Centre. | |||
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