Difference between revisions of "Child Support Guidelines"

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Child Support Guidelines (view source)

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The Guidelines cover every aspect of child support, including the calculation of income, how children's special expenses are paid for, the amount of support payable when the parents have the children for an almost equal amount of time, and the amount payable when one or more of the children live full-time with each parent.
The Guidelines cover every aspect of child support, including the calculation of income, how children's special expenses are paid for, the amount of support payable when the parents have the children for an almost equal amount of time, and the amount payable when one or more of the children live full-time with each parent.


This section talks about the basic principles of the Guidelines, the sharing of special and extraordinary expenses, the calculation of income, imputing income, and the circumstances in which the income of a parent's or guardian's new partner may be taken into <span class="noglossary">account</span>. It also provides an example of the contents of a typical child support order.
This section talks about the basic principles of the Guidelines, the sharing of special and extraordinary expenses, the calculation of income, ''imputing'' income, and the circumstances in which the income of a parent's or guardian's new partner may be taken into <span class="noglossary">account</span>. It also provides an example of the contents of a typical child support order.


==Basic principles==
==Basic principles==
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The Guidelines tables were most recently adjusted on November 22, 2017. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts, effective as of November 22, 2017.
The Guidelines tables were most recently adjusted on November 22, 2017. If you are relying on a printed version of the child support tables to figure out how much child support should be paid, make sure that your materials reflect the new table amounts, effective as of November 22, 2017.


The Guidelines' key presumption is set out in s. 3(1):
The Guidelines' key presumption is set out in section 3(1):


<blockquote><tt>Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is</tt></blockquote>
<blockquote><tt>Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is</tt></blockquote>
<blockquote><blockquote><tt>(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the amount, if any, determined under s. 7.</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the amount, if any, determined under section 7.</tt></blockquote></blockquote>


This is, however, only a presumption, and can be challenged or ''rebutted'', as is discussed in this chapter's next section, [[Exceptions to the Child Support Guidelines]].  In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross (before tax) yearly income at the time the order is made.
This is, however, only a presumption, and can be challenged or ''rebutted'', as is discussed in this chapter's next section, [[Exceptions to the Child Support Guidelines]].  In the vast majority of cases, however, the amount of child support payable is calculated using the payor's gross (before tax) yearly income at the time the order is made.
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The basic amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the child's share of lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, the parents may also be required to cover their respective portions of these other expenses, so long as they qualify as ''special and/or extraordinary expenses'' under the Guidelines.
The basic amount of child support a parent pays is presumed to cover a very wide scope of common day-to-day expenses associated with raising children: the child's share of lodging, utilities, shoes, groceries, diapers, clothes, toothpaste, school field trip fees, entertainment, haircuts, and so forth. The basic amount of support is not always presumed to include certain other kinds of expenses that are infrequent but expensive, such as the cost of daycare or orthodontic work. In addition to the basic amount of support payable, the parents may also be required to cover their respective portions of these other expenses, so long as they qualify as ''special and/or extraordinary expenses'' under the Guidelines.


Special and/or extraordinary expenses are defined in s. 7(1) of the Guidelines:
Special and/or extraordinary expenses are defined in section 7(1) of the Guidelines:


<blockquote><tt>(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;</tt></blockquote>
<blockquote><tt>(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;</tt></blockquote>
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<blockquote><tt>(f) extraordinary expenses for extracurricular activities.</tt></blockquote>
<blockquote><tt>(f) extraordinary expenses for extracurricular activities.</tt></blockquote>


Section 7(1)(1) clarifies (1)(d) and (1)(f), and says that for these subsections "extraordinary expenses" means:
Section 7(1.1) clarifies (1)(d) and (1)(f), and says that for these subsections "extraordinary expenses" means:


<blockquote><tt>(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into <span class="noglossary">account</span> that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or</tt></blockquote>
<blockquote><tt>(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into <span class="noglossary">account</span> that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or</tt></blockquote>
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Special expenses are shared between the payor and recipient in proportion to their incomes. These provisions of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, ''both'' parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.
Special expenses are shared between the payor and recipient in proportion to their incomes. These provisions of the Guidelines are intended to ensure that, if either parent incurs significant additional expenses for the child's needs or activities, ''both'' parents will share the cost on the principle that it is in children's best interests to have such needs met or to participate in such activities.


If an expense is found to qualify as a special and/or extraordinary expense under the s. 7(1) and (1.1) definitions, the court may make an order that both parties pay additional amounts, in addition to the  usual Guidelines basic amount of support, to cover all or a portion of the cost of the expense.
If an expense is found to qualify as a special and/or extraordinary expense under the section 7(1) and section 7(1.1) definitions, the court may make an order that both parties pay additional amounts, in addition to the  usual Guidelines basic amount of support, to cover all or a portion of the cost of the expense.


===Qualifying expenses as "special and/or extraordinary"===
===Qualifying expenses as "special and/or extraordinary"===


Just because an expense appears to fall into one of the categories listed in s. 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first to see if they will agree to share in the expense.   
Just because an expense appears to fall into one of the categories listed in section 7 of the Guidelines doesn't necessarily make it a shareable special and/or extraordinary expense. As well, just because an expense has been incurred doesn't mean it will automatically be shared; if you're not sure whether a planned expense will qualify as a shareable special expense, get some legal advice or talk to the other parent first to see if they will agree to share in the expense.   


An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families.  For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent), but that same $200.00 expense may be a special expense if only $500.00 per month Guideline support is being paid (and will therefore have to be shared between the parents).
An expense that may not qualify as a special expense for higher earning families may qualify as such for low income families.  For example, if guideline child support of $2,000.00 for one child is being paid, the $200.00 cost of soccer registration will probably not be considered a special expense (and will have to be paid from the $2,000 basic child support by the recipient parent), but that same $200.00 expense may be a special expense if only $500.00 per month Guideline support is being paid (and will therefore have to be shared between the parents).


According to s. 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:
According to section 7(1) of the Guidelines, the court must not only find that an expense fits into one of the categories listed above, but also consider:


*the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation," and
*the "reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation," and
#the necessity of the expense in relation to the child's best interests,
#the necessity of the expense in relation to the child's best interests,


The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by s. 7(1)(1). Here's a helpful summary from a 2010 case from our Supreme Court, ''[http://canlii.ca/t/2dpzr Piper v. Piper]'', 2010 BCSC 1718:
The court must bear in mind the special test for primary- and secondary-school education and extracurricular activities required by section 7(1.1). Here's a helpful summary from a 2010 case from our Supreme Court, ''[http://canlii.ca/t/2dpzr Piper v. Piper]'', 2010 BCSC 1718:


<blockquote>"Under s. 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in s. 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in s. 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."</blockquote>
<blockquote>"Under section 7(1.1)(a) the court is first required to consider whether the income of the requesting spouse, including any child support received, can reasonably cover the expense claimed or whether the expense exceeds her ability to pay without any consideration of the factors enumerated in section 7(1.1)(b). If the income cannot cover the expense, the expense is deemed to be extraordinary and the court's next analysis turns to consideration of the factors enumerated in section 7(1) which, of course, brings into consideration the parties' means and pre-separation spending pattern."</blockquote>


====Reasonableness====
====Reasonableness====
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===Sharing qualifying expenses===
===Sharing qualifying expenses===


Under s. 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure out how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.
Under section 7(2) of the Guidelines, expenses that qualify as special and/or extraordinary expenses are generally shared by the parties in proportion to their incomes, after deducting any contribution to those costs made by the child or the government, through things like grants or tax deductions. The idea here is to look at the total pot of money available to the child — the income of the payor plus the income of the recipient — and to figure out how much each party's share of that pot is, and then pay the child's special expenses according to each parent's share.


The easiest way to calculate a parent's ''proportionate share'' is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.
The easiest way to calculate a parent's ''proportionate share'' is to add the incomes of both parents together and then figure out what percentage each income is of the total. Here are two examples.
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The cost that is being shared is the ''net cost'' of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.  
The cost that is being shared is the ''net cost'' of an expense, in other words, the amount that is actually being paid after any third-party contributions have been applied to reduce the expense. Daycare costs, for example, are sometimes subsidized for lower income earners and the amount paid by a parent is deductible from their income. It is the net expense after deducting any subsidy and any tax saving that is to be shared.  


Note that the income of a parent's new spouse or partner may sometimes be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835, the court held that the s. 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the contribution of a parent's new partner. Also see the case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.
Note that the income of a parent's new spouse or partner may sometimes be taken into consideration in determining a parent's "means" in sharing a special expense. In the 2000 Supreme Court case of ''[http://canlii.ca/t/1fm6b Baum v. Baum]'', 2000 BCSC 1835, the court held that the section 7(1) consideration of the "means of the spouses" should be interpreted broadly as including all sources of income available to the paying parent, including the contribution of a parent's new partner. Also see the case of [http://canlii.ca/t/53kt ''Scott v. Scott''], 2000 BCSC 844.


==The calculation of income==
==The calculation of income==
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*the payor has tried to reduce their income by claiming unreasonable deductions.
*the payor has tried to reduce their income by claiming unreasonable deductions.


If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in s. 19(1) exist. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income.
If you are going to make an argument that income should be imputed to someone, you will have to prove that one or more of the conditions described in section 19(1) exist. If a party's underemployment or unemployment is caused by child care responsibilities, the court will not usually impute income.


It's not enough merely to ''argue'' that one of the conditions listed in s. 19(1) exist, you have to be able to ''provide evidence'' that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, ''[http://canlii.ca/t/1pt18 Nahu v. Chertkow]'', 2003 BCSC 1285, in determining whether a payor is intentionally underemployed or unemployed:
It's not enough merely to ''argue'' that one of the conditions listed in section 19(1) exist, you have to be able to ''provide evidence'' that the condition exists. The following factors were cited by the court in a 2003 Supreme Court case, ''[http://canlii.ca/t/1pt18 Nahu v. Chertkow]'', 2003 BCSC 1285, in determining whether a payor is intentionally underemployed or unemployed:


*the payor's education, training, and work experience,
*the payor's education, training, and work experience,
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A number of readers have asked whether they will have any responsibility to make child support payments if their partner, who is a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.
A number of readers have asked whether they will have any responsibility to make child support payments if their partner, who is a parent or guardian under an obligation to pay child support, dies. The simple answer to that question is no, they will have no responsibility. The fact that they are in a relationship with a paying parent doesn't necessarily mean that they will have a duty to keep paying support if that parent dies.


While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a ''stepparent'' of the child under the ''[[Family Law Act]]''. The act says that all parents, guardians, and stepparents are required to support their children, but s. 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least one year. In other words, a new partner who marries a paying parent may have an obligation if they have contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.
While that is a good general rule, and one you can probably rely on, it is possible that a claim could be made against the new partner as a ''stepparent'' of the child under the ''[[Family Law Act]]''. The act says that all parents, guardians, and stepparents are required to support their children, but section 147 says that stepparents who are obliged to pay child support must have contributed to the support of the child for at least one year. In other words, a new partner who marries a paying parent may have an obligation if they have contributed to the support of the child. Again, while this is technically possible, orders against new partners following the death of the paying parent are extremely rare.


The deceased parent’s estate may, however, be liable for the children and a claim could be made against the estate under the ''Wills Estates and Succession Act'', but this is beyond the scope of this service.
The deceased parent’s estate may, however, be liable to pay child support and a claim could be made against the estate under the ''Wills Estates and Succession Act'', but this is beyond the scope of this chapter.


==Agreements and orders for child support==
==Agreements and orders for child support==
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<blockquote><tt>UPON the Court being advised that the children are</tt></blockquote>
<blockquote><tt>UPON the Court being advised that the children are</tt></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 1998, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Jesse Ann Doe, born on 1 March 2008, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2000;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>Sandra Alexandra Doe, born on 1 April 2010;</tt></blockquote></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>AND UPON the Court finding that the Claimant's income for the purposes of the Child Support Guidelines is $72,000.00 per year;</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>THIS COURT ORDERS that:</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2013 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the Family Relations Act; and,</tt></blockquote>
<blockquote><tt>1. The Claimant, Jane Doe, payor, shall pay to the Respondent, John Doe, recipient, the sum of $1,092 per month, commencing on the first day of April 2018 and continuing on the first day of each and every month thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act''; and,</tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2014 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act'', and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children." </tt></blockquote>
<blockquote><tt>2. The Claimant shall provide to the Respondent a copy of her tax return on the first day of May 2019 and continuing on the first day of May for each and every year thereafter until such time as the children are no longer "children" as defined by the ''Family Law Act'', and the Claimant shall provide to the Respondent a copy of each Canada Revenue Agency Notice of Assessment or Notice of Reassessment within two weeks of her receipt of the same, and adjusting child support accordingly, and continuing until such time as the children are no longer "children." </tt></blockquote>


The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.
The point of the last clause of each of these sample orders is to require the payor to annually provide evidence of their income to the recipient so that both parties can decide whether an increase or a decrease in the amount payable is appropriate.


If the Order is to include special and extraordinary expenses, the Order will usually include the receiving spouse’s income (including spousal support if that is being paid), the percentage contribution of each parent to special expenses, and will also require both parents to exchange income information each year.  Disclosure of income by both parents is also required in shared and split custody cases as well.
If the Order is to include special and extraordinary expenses, the Order will usually include:
* the recipient spouse’s income (including any spousal support they might be receiving),  
* the percentage contribution due for each parent to cover special expenses, and  
* a requirement that both parents exchange income information each year.   
 
Disclosure of income by both parents is also required in shared and split custody cases.


It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application.  For more information, see the case of [http://canlii.ca/t/fspd1  ''Yu v. Jordan''], 2012, BCCA 367.
It is a good idea to specify in a child support order whether the order is made under the ''Divorce Act'' or the ''Family Law Act'' as it could have an effect on a future variation application.  For more information, see the case of [http://canlii.ca/t/fspd1  ''Yu v. Jordan''], 2012, BCCA 367.
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