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Difference between revisions of "Child Support"
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==The ''Divorce Act''== | ==The ''Divorce Act''== | ||
Child support can be ordered under section 15.1 of the "Divorce Act" but only if: | |||
a)the parents (or one parent and one step-parent) are or have been legally married; | |||
b) at least one of the parents or a step=parent have lived in the province continuously for at least one year immediately before the court action is started. | |||
Divorce action can only be started in Supreme Court, not Provincial Court. | |||
Parents who do not qualify to apply for child support under the "Divorce Act" (or who do not want to go that route) can still apply for child support under the "Family Law Act" either in Provincial Court or Supreme Court. | |||
===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 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 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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*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 | *child support can be payable after the child reaches the age of majority if the child is still financially dependent on the parents. | ||
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 | 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 university, or because the child has a serious, chronic illness that prevents them from becoming self-supporting. The factors a court will consider to decide if 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 their own support through part-time work, student loans, grants, bursaries, RESPs or other | *the child's ability to contribute to their own support through part-time work, student loans, grants, bursaries, RESPs or other resources, | ||
*the child's academic <span class="noglossary">performance</span> and dedication to their 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 | ||
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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. | ||
Many post-secondary institutions consider that 60% of a full case load is “full-time” and the courts usually go along with this. | |||
Although for dependent children over 19 child support is presumed to be the Guideline table amount, | Although for dependent children over 19 child support is presumed to be the Guideline table amount, Section 3(2) of the Guidelines allows the court to order a different amount that the court considers appropriate, taking into account the child’s needs, and other circumstances, and the financial circumstances of the child and the parents. | ||
===Statutory provisions=== | ===Statutory provisions=== | ||