Difference between revisions of "Spousal and Child Support (3:X)"

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== A. General ==
 
== A. General ==
  
The ''FRA'' only applies to proceedings started prior to March 18, 2013 and to agreements made before the ''FLA'' came into force. Please view an older version of the LSLAP manual if the ''FRA'' applies to your matter.  
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Support is the financial support one person provides for another person (adult or child). This is meant to provide for that person’s reasonable needs (i.e. food, clothing, shelter, education, and medical care). Spousal support is intended to pay for basic living expenses and is highly discretionary. In contrast, child support is an obligation acquired through parenthood; it is mandatory with firm guidelines. Child support always takes precedence over spousal support if a party’s ability to provide financial support is limited.  
  
The division of property on marriage breakdown is dealt with in Part 5 of the ''FLA''. When the ''FLA'' replaced the ''FRA'', it significantly changed the property law regime in British Columbia and reduced judicial discretion. It is a simpler model designed to help parties achieve resolutions out of Court.  It operates on the presumption that spouses are equally entitled to family property and equally responsible for family debt (s 81).  It also provides that unmarried spouses (who have lived together in a marriage-like relationship for at least two years) may avail themselves of the property and liability provisions of the ''FLA'' in Parts 5 and 6.
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An application for support may be made under the ''FLA'' or ''DA'', but it is essential to look into the standards, limitations and other important differences between the Acts. The parties may also agree on the issue of support and incorporate their agreement into a written document (a separation agreement), which may have the legal status and force of a personal contract. An agreement is not completely determinative of the issue however; the Court will make orders superseding the provisions of an agreement in order to bring the obligations of parties in line with the requirements of statute.  
  
== B. Legislation ==
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In making an order for spousal support, the Court will not look to the conduct (or misconduct) of the parties, but will consider the “condition, means and other circumstances of each” in making an order. Nevertheless, in [http://canlii.ca/t/1nmrd ''Leskun v Leskun'', [2006<nowiki>]</nowiki> SCJ No25 (SCC)], the Court held that the effect of spousal misconduct on the other spouse’s ability to achieve self-sufficiency should be taken into consideration. In some cases, the Court will refer the matter to the registrar who holds an independent inquiry into the spouses’ assets, income liabilities, etc., and then recommends a “reasonable” support payment. This recommendation does not become an order until a judge confirms it. Arrangements for spousal support can be made as part of a separation agreement, granted at the time of a divorce or, if no order for support is made or it is denied at the time of divorce, within a reasonable time thereafter. Under the ''FLA'', the time limit is 2 years for both married and unmarried couples who have lived together in a marriage-like relationship for at least two years (s 198; [http://canlii.ca/t/g2gfj ''Meservy v Field'', 2013 BCSC 2378]). The exception to this rule is if the couple have a child(ren) together (s 3(1); [http://canlii.ca/t/g7cp6 ''CAM v MDQ'', 2014 BCPC 110]).  
  
=== 1. Divorce Act [DA] ===
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Orders for child support are almost always fixed according to the schedule of support payments set outin the [http://canlii.ca/t/80mh ''Child Support Guidelines''], which are based on the payer’s gross income and the number of children for whom support is being paid. There is an exception to the strict application of the Guidelines in cases where the parties share parenting time (i.e. where one parent has at least 40% of the time with the child(ren)). In those cases there is not simply a pay or spouse and a recipient, rather the support is typically calculated based on a set-off approach whereby each parent’s support obligation is calculated and one is set-off against the other. 
  
The ''DA'' does not deal with property division.  
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The Court will not grant a divorce if there are not reasonable arrangements made for child support (''DA'', s11). The level of child support is based on the income of the non-custodial parent and is set out in the Federal Child Support Guidelines.
  
=== 2. Family Law Act [FLA] ===
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Under the ''FLA'', the most important changes are in wording. The following are some examples of new vocabulary from the FRA || FLA:
 +
*Custody || Guardianship/Parenting Time
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*Access || Parenting Time/Contact
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*Maintenance || Support
  
Section 81 of the ''FLA'' outlines that each spouse is entitled to an undivided, one half interest of family property and is equally responsible for debt upon separation ([http://canlii.ca/t/g7f6f ''Stonehouse v Stonehouse'', 2014 BCSC 1057]; [http://canlii.ca/t/gdpwf ''Joffres v Joffres'', 2014 BCSC 1778]). However, the ''FLA'' substantially changes what is considered to be family property, essentially allowing spouses to keep property they bring into a relationship and share only in the increase in value of that property and the net value of new property obtained after cohabitation or marriage. 
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== B. Courts ==
  
The ''FLA'' carves out a category of excluded property under section 85.  
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Both the Supreme Court and the Provincial Court have the powers to grant or vary support orders made under the ''FLA'', but only the Supreme Court can grant or vary support orders made under the ''DA''. Only the Supreme Court can grant interim relief under the ''DA'', but the Provincial Court can grant interim relief under the ''FLA''.  
  
Section 85 (1) of the FLA reads as follows:
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=== 1. Provincial Court ===
<blockquote><tt>
 
The following is excluded from family property:
 
  
(a) property acquired by a spouse before the relationship between the spouses began;
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The Provincial (Family) Court is often the most accessible court to self-represented litigants. It can deal with applications for support made  under the FLA, as well with variation of previous Provincial Court child or spousal support and arrears of child or spousal support orders. Applications can be made at certain Provincial (Family) Courts for a Supreme Court Hearing.  
(b) inheritances to a spouse;
 
(b.1) gifts to a spouse from a third party;
 
(c) a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for
 
* (i) loss to both spouses, or
 
* (ii) lost income of a spouse;
 
(d) money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for
 
* (i) loss to both spouses, or
 
* (ii) lost income of a spouse;
 
(e) property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse;
 
(f) a spouse's beneficial interest in property held in a discretionary trust
 
(i) to which the spouse did not contribute, and
 
(ii) that is settled by a person other than the spouse;
 
(g) property derived from property or the disposition of property referred to in any of paragraphs (a) to (f).
 
</tt></blockquote>
 
  
Any increases in the value of the excluded property that occur during the relationship are considered family property and are not excluded from division. The spouse claiming that the property in question qualifies as excluded property is responsible for demonstrating that it fits the definition under s 85(1) ([http://canlii.ca/t/g0d8k ''Bressette v Henderson'', 2013 BCSC 1661]).
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=== 2. Supreme Court ===
  
This property division regime applies to all married spouses as well as all unmarried common-law spouses who have lived in a marriage-like relationship for at least two years. The date of separation will be the relevant date used to identify the pool of family property to be divided. However, it is the date of the hearing or agreement which determines the date of valuation of property. Spouses may choose to opt out of these property division rules but must make these different arrangements through an agreement.  
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The Supreme Court can order interim relief under the ''DA'' or ''FLA'' or make an order for support upon the granting of a divorce order. If a Supreme Court order for support is made under the ''DA'', that order ousts any provincial statutory jurisdiction in that matter. While obtaining interim relief from the Supreme Court is more expensive than obtaining a Provincial (Family) Court order, it can be faster if the application is urgent or if the party wishes to proceed ''ex parte'' (without notice to the other side).
  
Family property is defined at s 84(1):
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== C. Enforcement ==
<blockquote><tt>
 
(a) on the date the spouses separate,
 
* (i) property that is owned by at least one spouse, or
 
* (ii) a beneficial interest of at least one spouse in property;
 
(b) after separation,
 
* (i) property acquired by at least one spouse if the property is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either, or
 
* (ii) a beneficial interest acquired by at least one spouse in property if the beneficial interest is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either.
 
</tt></blockquote>
 
  
=== 3. Supreme Court Family Rules [SCFR] ===
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=== 1. Family Maintenance Enforcement Act (RSBC 1996, c 127) [FMEA] ===
  
The Supreme Court Family Rules contain a number of procedural provisions for dealing with property. For example, Rule 12-1 allows for the detention, preservation, and recovery of property that is the subject matter of a family law case. Rule 12-4 allows for a pre-trial injunction. Rule 15-8 permits the Court to order a sale of property if it appears necessary and expedient that the property be sold. Where a dispute arises, an application can be made to the Supreme Court to settle the matter, but clients should be advised that a court action is costly and a negotiated settlement is generally to their advantage because courts have a wide discretion to distribute family property. For example, a court could order the sale of property at a time when the housing market is poor, resulting in a low sale price. Sometimes, a spouse should consider selling their interest in a property to the other spouse. 
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The [http://canlii.ca/t/840m ''FMEA''], passed in 1988, gives the provincial government extensive powers to collect support arrears including:
  
== C. Types of Assets ==
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*a Notice of Attachment (s 17);
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*12-month garnishing orders (s 18);
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*Attachment Orders (s 24); and
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*Attachment of money owing by the Crown (s 25) including Income Tax refunds and Employment Insurance benefits directly from the Federal Crown.  
  
=== 1. Family Assets/ Family Property ===
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The [https://www.fmep.gov.bc.ca/ Family Maintentance Enforcement Program (FMEP)] can only enforce support orders if the payor is in its jurisdiction or sister jurisdictions that will assist in enforcing the order. For a complete list of sister jurisdictions see https://www.fmep.gov.bc.ca/paying-or-receiving-maintenance/out-of-province-orders/other-jurisdictions/. Any person who receives a support order or separation agreement that has been filed in court may voluntarily register with the program.
  
Under section 84 of the ''FLA'', family property includes all real and personal property owned by one or both spouses at the date of separation unless the asset in question is excluded, in which case only the increase in the value of the asset during the relationship is divisible. It is no longer relevant whether an asset was ordinarily used for a family purpose in deciding if it is family property.  
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=== 2. Reciprocal Enforcement ===
  
Pursuant to section 85 of the ''FLA'', certain property is excluded from family property including the following: 
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If properly filed in BC, a support order from another jurisdiction is enforceable under the ''FMEA''. All other Canadian jurisdictions have similar legislation and will enforce BC orders on registration in their courts. Many foreign jurisdictions will also enforce BC orders; see the table  of reciprocating states in the [http://canlii.ca/t/84h5 ''Court Order Enforcement Act'', RSBC 1996,c 78].
  
*Property acquired by a spouse before the relationship between the spouses began;
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=== 3. Variation of Orders ===
*Gifts (from a third party) or inheritances to one spouse, unless the gift or inheritance was transferred into the parties’ joint name or the other spouse’s sole name;
 
*Most damage awards and insurance proceeds, except those intended to compensate both spouses 
 
*Some kinds of trust property
 
**Under s 85(e), property must be held in trust for the benefit of a spouse
 
**A spouse's beneficial interest in property held in a discretionary trust to which the spouse did not not contribute, and that is settled by a person other than the spouse are also excluded from family property under s 85 (f)
 
  
Family property is presumptively divided equally unless it would be significantly unfair to do so (ss 81 and 95 of the ''FLA'').
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Spousal support orders may be varied where there have been changes in the needs, means, capacities and economic circumstances of each party (''DA'', s 17(4.1), ''FLA'' s 215(1)). The Court may also reduce the amount of support to a spouse where it finds that the spouse or former spouse “is not making reasonable efforts” to become self-sufficient. Note that for a variation application to be successful the applicant must demonstrate that there has been a “material change in  circumstances” which means circumstances that, if known at the time of the agreement or Order, would have resulted in a different outcome.
  
Family debt, which is new in the ''FLA'', is divided equally, unless equal division would be significantly unfair to one spouse. The value of all property is calculated at either an agreed date, or at the date of a court hearing. Any increases in the value of the excluded property that occur during the relationship are considered family property and are not excluded from division.
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There may also be a variation in child support levels provided there is a change in circumstances per the Child Support Guidelines, which include changes in the payor parent’s income (''DA'', s 17(4), ''FLA'' s 152). If the payor’s income has changed, a variation of the child support order is virtually automatic when one makes an application in court. Provincial Court orders made in other Canadian jurisdictions and in certain reciprocating foreign states may be varied under Division 2 of the ''Interjurisdictional Support Orders Act'', SBC 2002, c 29.  The ''Act'' creates a system where an application is made through the filing of prescribed documents and filed with the Reciprocals Office in British Columbia, which is responsible for transmitting the documents to the originating jurisdiction for adjudication.  
  
=== 2. Savings ===
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Support orders made under the ''DA'' may only be varied through the provisions of sections 17, 18, and 19. In this process, someone seeking to change a support order made in another Canadian jurisdiction must apply to the courts of BC for a provisional order. The provisional order is sent to the originating jurisdiction for a second hearing to confirm the order. Unless the order is confirmed, the provisional order has no effect.
  
Under the ''FLA'', all money held by one spouse in a financial institution is considered family property and equally divisible, unless that spouse can prove that it is excluded property.
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As of March 1, 2021, sections 17, 18, and 19 of the DA will be repealed or revised to include new language related to parenting, as well as new provisions for addressing variation, recission, and suspension of orders (s 17), interjurisdictional proceedings (s 18), and proceedings between a province and another designated jurisdiction (s 19).  
  
=== 3. Pensions and RRSPs ===
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=== 4. Agreements ===
  
Rights under an annuity, pension, home ownership, or registered retirement savings plan are considered family property, including each party’s [http://www.esdc.gc.ca/en/cpp/index.page Canadian Pension Plan (CPP)] credits.
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The Court can enforce written agreements that provide for the payment of child or spousal support., a written agreement concerning support may be filed in the Provincial Court and in the Supreme Court. Once filed, the agreement has the effect of a court order for enforcement purposes.  
  
The division of pensions is clarified in the ''FLA''. Unless  the  pension is  proven  to  be excluded property, it will be divisible. The presumption is equal division unless it would be significantly unfair based on the considerations in s 95 of the ''FLA''. If a spouse is to receive benefits at a later date, they may become a limited member of the plan. If they cease to be a limited member then their share is transferred. A spouse can generally either choose to have a lump-sum payment of their share, to have a separate pension payment issued to them (s 115) or a hybrid of both (s 116). This decision may be made at any time (either before or after the pension commences) but the division will only occur after the pension has commenced (s 115). 
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== D. Spousal Support ==
  
If an agreement or order regarding the benefits of a pension provides that the benefits are not divisible or is silent on entitlement to benefits, a member and a spouse may agree to have benefits divided before the earliest of the following:  
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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.  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]).
  
#Benefits are divided under the original agreement or order,
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=== 1. Legislation ===
#The member or spouse dies, or
 
#Benefits are terminated under the plan.  
 
  
If an agreement or order provides that the member must pay the spouse a proportionate share of benefits under a plan where the member’s pension commences and the member’s pension has not commenced, the member and spouse may agree, by the spouse giving notice to Division 2 of Part 6 of  the ''FLA'', to divide the benefits in accordance with the Part, and unless the member and spouse agree otherwise, the original agreement or order must be administered in accordance with the regulations.
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==== a) Divorce Act [DA] ====
  
:'''NOTE:''' BC is one of the few provinces that allow spouses to enter into a written agreement to waive the equalization of their pensionable credits under the CPP.
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Section 15.2 of the ''DA'' creates an obligation to support a spouse. However, s 15.3(1) directs the Court to give priority to child support in any application for child and spousal support under the ''DA''. The entire gross income (guideline income) is used to calculate child support and then any Net Disposable Income that remains (as calculated based on the incomes of both parties and taking into account taxes and other charges) is apportioned between the parties based on the length of marriage. It may be that the result of the payment of child support reduces the Net Disposable Income to very little and in those cases child support takes priority over the sharing of the NDI and there would be little to no spousal support payable. There is no limitation date under the ''DA''.
  
=== 4. Real Property ===
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==== b) Family Law Act [FLA] ====
  
It is often necessary to take early steps to secure the title to real property when there is a separation. In fact, it is recommended for clients to file as soon as possible to avoid missing any limitation dates and preserve their claim. This is particularly so where property is registered in the name of only one spouse, and there is a risk of that party disposing of or encumbering the property, or where judgments are likely to be registered against one party’s interest, which might prejudice the other party. Under section 91 of the ''FLA'' and Rules 12-1 and 12-4 of the ''Supreme Court Family Rules'', one may request an automatic restraining order to prevent the sale or disposal of family property including real property. There are several ways of protecting a spouse’s interest.  
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The ''FLA'' aligns support considerations with the ''DA'', permits periodic reviews to allow for changing circumstances, and provides guidelines for when a deceased spouse’s estate is obliged to continue payments. Considerations for posthumous support payments include the size of the estate and the need of the payee (s 171). Additionally, child support is to be prioritized over spousal support where a paying spouse has limited resources. (s 173). The ''SSAG'' are not referred to in the Act and remain advisory, although Courts in British Columbia give them much deference.
  
==== a) Certificates of Pending Litigation and Caveats ====
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==== c) Spousal Support Advisory Guidelines ====
  
Caveats and Certificates of Pending Litigation are warnings to potential purchasers and establish claim priority over the property from the day the Caveat or Certificate of Pending Litigation is filed. This document will defeat the presumption of claim priority given to the bona fide purchaser for value. Entitlement to a certificate of pending litigation is limited. See the [http://canlii.ca/t/8456 ''Land Title Act'', RSBC 1996, c250] and ''Annotated Land Title Act'' by Gregory and Gregory for the procedure and forms. Note that Caveats have an expiry date and are therefore a temporary measure to protect a party’s interest.
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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.  
  
==== b) Land (Spouse Protection) Act, RSBC 1996, c 246 ====
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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 (refer to http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html).
  
The [http://canlii.ca/t/8451 ''Land (Spouse Protection) Act'', RSBC 1996, c 246] applies where a party has elected not to commence legal proceedings, but needs to protect their interest in real property. It  provides an alternative to a Certificate of Pending Litigation for a married spouse (not common law) where the “property” was the “matrimonial  home”. The Act allows a charge to be placed on land that will prevent disposition of the property without the written consent of the applicant  for the charge (refer to the ''Land (Spouse Protection) Act'' and the ''Land Title Act'' for the registration procedure). Note that this only applies while the parties are legally married. The charge may be struck out on the death of, or final divorce from, the applicant.  
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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]).
  
Registration of a charge by one spouse under the ''Land (Spouse Protection) Act'' prevents the other spouse from selling or encumbering their share, but is not protection against a creditor who could obtain an order for sale of the house. So long as one is legally married to their spouse, one may file against the property without the other spouse’s notice or consent, in order to prevent the transfer of the property.
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=== 2. Principles of Spousal Support ===
  
==== c) Registration of a Notice Under the Land Title Act ====
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==== a) General ====
  
A spouse who is a party to a cohabitation agreement, a marriage agreement, or a separation agreement may file a notice in the Land Title Office regarding any lands to which the agreement relates (''FLA'', s 99). This applies to married spouses and common-law spouses who have lived in a marriage-like relationship for at least two years.
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There are three bases for entitlement to spousal support:
  
The information required in the notice includes the names and addresses of the spouses, the legal description of the land, and the provisions of the agreement relating to that land. The Registrar may then register this notice in the same manner as a charge on the land.  
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# Compensatory (to compensate one spouse who was economically disadvantaged as a result of the role that spouse took on during the relationship) ([http://canlii.ca/t/1fs7v ''Moge v Moge'', [1992<nowiki>]</nowiki> 3 SCR 813]);
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# Non-compensatory (need based) ([http://canlii.ca/t/dlq ''Bracklow v Bracklow'', [1999<nowiki>]</nowiki> 1 SCR 420]); and  
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# Contractual (i.e. if there was a marriage or cohabitation agreement setting out terms for support) ([http://canlii.ca/t/1g5lh ''Miglin v Miglin'', 2003 SCC 24]).
  
Once the notice is registered, there can be no subsequent registration of a lease, mortgage, transfer, etc., unless both spouses or former spouses sign a cancellation or postponement notice in the prescribed form. A spouse or former spouse may apply to the Supreme Court for an order to cancel or postpone a notice where the other party to the agreement cannot be found after reasonable search, or unreasonably refuses  to sign a cancellation or postponement, or is mentally incompetent.  
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Once a party has met the requirement of demonstrating entitlement, you move to the calculation of quantum. When determining quantum of support one factor to be considered is whether the needs of the recipient spouse have been met by the division of assets however if support is compensation based then even if the recipient receives significant assets that is not a basis to reduce support (See [http://canlii.ca/t/237r7 ''Chutter v Chutter'', [2009<nowiki>]</nowiki> CarswellBC 1028 (BCCA)]). Typically the way this is addressed is to determine what income a party can reasonably earn from the assets received on division and to take that into account in calculating the quantum of support.
  
The use of this notice also extends to mobile homes.
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==== b) Factors considered ====
  
==== d) Supreme Court Family Rules Rule 12-1 and 12-2 and Section 91 of the Family Law Act ====
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Section 15.2(6) of the ''DA'' and section 161 of the ''FLA'' direct courts to consider the following  objectives in determining entitlement to spousal support:
  
Section 91 of the ''FLA'' and SCFR R 12-1 and 12-2 allow for temporary orders respecting the protection of property. On application by a party, the Supreme Court can:
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* to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;
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* to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;
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* to relieve any economic hardship of the spouses arising from the care of the child, beyond the duty to provide support for the child; and
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* as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.
  
*Make an order restraining the other party from disposing of any property at issue under Part 5 (property) or Part 6 (pension division);
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Section 15.2(4) of the ''DA'' and section 162 of the ''FLA'' direct courts to consider the same factors in determining the amount and duration of spousal support, namely, the conditions, means, needs and other circumstances of each spouse, including:
*Make an order for the detention, custody, or preservation of any property that is the subject matter of a family law case or as to which a question may arise
 
*Make an order to allow the whole or party of the income of the property to be paid to a party who has an interest in it
 
*In the case of personal property, make an order that part of the personal property be delivered to or transferred to a party; and  
 
*Make an order for a pre-trial injunction.
 
  
=== 5. Business Assets ===
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* the length of time the spouses cohabited;
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* the functions performed by each spouse during cohabitation; and
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* any order, agreement or arrangement relating to support of either spouse.
  
Business property is family property unless it is excluded property under the ''FLA''.  
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=== 3. Issues Related to Spousal Support ===
  
== D. Use of Assets ==
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==== a) Employment and Income Assistance and Spousal Support ====
  
The Court can award one spouse exclusive use of assets pending further agreement between the parties or a Court order. This can include large assets such as a home and car; or smaller assets as may be required to operate a business, or for the departing spouse’s television, computer, books, for example.  
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Spouses can opt into this program so that the FMEP can continue to assist in collecting the support, but still allow them to keep their support rather than having it deducted from other government assistance they are receiving, if any.
  
== E. Unmarried Couples ==
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==== b) Taxes and Spousal Support ====
  
Under the ''FLA'', unmarried couples who have lived in a marriage-like relationship for at least two years are treated the same way as married couples. Unless an action was started under the ''FRA'', the ''FLA'' now applies (as long as the time limit has not expired) and may apply even if proceedings have already been commenced.  
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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 (e.g. child support: http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp; spousal support: http://www.mysupportcalculator.ca/Calculator.aspx, http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html). 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 (''e.g.'' if payments were made in 2012, a retroactive agreement would need to be entered into before December 31, 2013).  
  
The courts will recognize an equitable interest of a common-law spouse in all the property and assets acquired by the couple through the joint efforts of the two spouses, although registered in the name of the other spouse (i.e. a constructive trust). The scope of constructive trusts was greatly expanded in [http://canlii.ca/t/1fs3f ''Peter v Beblow'' (1993), 3 WWR 337, 77 BCLR (2d) 1], in which the Court found a constructive trust arising from the contributions made by homemaking and childcare services, which allowed for the retention of money that would otherwise be paid for such services to be used as mortgage payments.  
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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).
  
Claims in trust may be constructive, resulting (implied trusts), or express. Constructive trusts are the most common type of trust claim, where the Court imposes a trust to remedy the unjust enrichment of one party at the deprivation of the other.  However, there are limits, and a court will not interfere where the elements of constructive trust are not present. A causal connection must be found to exist between the contribution made and the property in question. Refer to a general text for a more comprehensive description of the elements of constructive trust. Because common law constructive trusts are relief granted by a court, spouses can make use of both the ''FLA'' requirements for equal division and common law constructive trust principles when seeking relief for unfair division of property.
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=== 4. Limitation Period ===
  
== F. Interim Relief ==
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See Section XV Part A for the limitation periods for bringing claims for spousal support for both married spouses and common-law spouses.
  
The Court may make a number of orders for interim relief under Part 5, Division 3 of the FLA. This means that prior to a trial on all the issues in the proceeding, the Court may:
+
== E. Child Support ==
*Order an interim distribution of family property that is at issue to provide money to fund (s 89):
 
#Family dispute resolution,
 
#All or part of a proceeding under the FLA, or
 
#Obtaining information or evidence in support of family dispute resolution or an application to a court
 
*Order temporary exclusive occupation and possession of the family residence by just one spouse (s 90)
 
*Order restraining a spouse from disposing of any property at issue under Part 5 (property division) or Part 6 (pension division) until or unless the other spouse establishes that a claim made under Part 5 or Part 6 will not be defeated or adversely affected by the disposal of property (s 91(1))
 
*Order the possession, delivery, safekeeping and preservation of property (s 91(2)(a))
 
*Prohibit one spouse from disposing of, transferring, converting, or exchanging into another form, property in which the application may have an interest, or vesting all or a portion of property in, or in trust for, the application (s 91(2)(b)).  
 
  
== G. Limitation Period ==
+
=== 1. Definition of “Child” ===
 +
 
 +
The definition of “child” varies slightly between the ''DA'' (s 2) and the ''FLA''.
 +
 
 +
Under the ''DA'', the definition of “child” is someone who is under the age of majority (19 years in  B.C.) '''and''' who has not withdrawn  from the parent’s charge, or who is at or over the age of majority but unable, by reason of illness, disability or other cause, to withdraw from parental charge or to obtain necessaries of life. Therefore, under the ''DA'', there may not be an obligation to pay child support to a child under 19, if the child has already withdrawn from the parent's charge.
 +
 
 +
Under the ''FLA'', the definition of “child” is a person who is under 19 years of age or a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessities of life or withdraw from the charge of their parents or guardians.
 +
 
 +
=== 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 web sites, 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  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.
 +
 
 +
=== 3. Legislation ===
 +
 
 +
==== a) Divorce Act [DA] ====
 +
 
 +
The ''DA'' provides for support orders as a corollary to divorce under s 15.1, with the discretion to extend support for a child who is over the age of majority and is unable, by reason of illness, disability or other cause, to withdraw from their charge. If the majority-age child is otherwise unable to obtain the necessaries of life – for example, if the child is a university student – support orders may also be extended (s 2(1)).
 +
 
 +
An order for child support made under the ''DA'' has effect throughout Canada (s 14). Under s 17(1) of the ''DA'', any court of competent jurisdiction, as defined by s 5, can vary, rescind, or suspend an order.
 +
 
 +
Children born within the marriage and adopted children are treated equally under the ''DA''. However, some controversy remains as to whether a stepchild, for whom the respondent stood in ''loco parentis'' (in place of the parent), qualifies for support under the ''DA''. Child support will be assessed in light of the biological parents' support obligation.
 +
 
 +
==== b) Family Law Act [FLA] ====
 +
 
 +
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 ''DZM v SM'', 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 to s 31 of the ''FLA'' or make an order under s 33(2) of the ''FLA''.
 +
 
 +
==== c) Child Support Guidelines ====
 +
 
 +
The ''Federal Child Support Guidelines'' are federal regulations that determine the amount of child support owing, and vary from province to  province. The guidelines establish how much child support must be paid based on the payor’s income and the number of children for whom support is to be paid. For more information refer to the resources listed at the end of the chapter.
 +
 
 +
==== d) Other Legislation ====
 +
 
 +
Section 215 of the ''Criminal Code'' places a legal duty on parents to provide their children with the necessaries of life until they reach the age of 16, unless the child is able to provide the necessaries of life independently.
 +
 
 +
=== 4. Limitation Period ===
 +
 
 +
See Section XV Part A for the limitation periods regarding child support claims.
 +
 
 +
=== 5. Interjurisdictional Support Orders ===
 +
 
 +
Parents living in different provinces or countries can apply for or enforce support orders without needing to travel to the other jurisdiction. Under the ''Interjurisdictional Support Orders Act'', SBC 2002, c 29, many jurisdictions have agreed to recognize family support (maintenance) orders and agreements made elsewhere. British Columbia has reciprocal agreements with all Canadian provinces and territories and with several foreign countries.
 +
 
 +
For a list of all reciprocating jurisdictions, see the Schedule in the ''Interjurisdictional Support Orders Regulations'', BC Reg 15/2003 at www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/10_15_2003.
 +
 
 +
Appeals of decisions made under this Act must be made within 90 days of the ruling (s 36(5)) but, despite this, the Court to which an appeal is made may extend the appeal period before or after the appeal period has expired (s 36(6)). The website http://www.isoforms.bc.ca provides a questionnaire under the heading “forms select” to determine which application forms are required for a client’s specific situation. Forms can be accessed online or be mailed to you. A guide to filling out the forms can be found at www.isoforms.bc.ca/shared/pdfs/GuideIntroInstructions.pdf. Completed forms can be submitted to:
 +
 
 +
'''Reciprocals Office'''
 +
 
 +
Vancouver Main Office Boxes
 +
 
 +
P.O. Box 2074
 +
 
 +
Vancouver, B.C. V6B 3S3
 +
 
 +
In BC, Family Justice Counsellors have the ability to 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, call Enquiry B.C. at (604) 660-2421 between 8:00 a.m. and 5:00 p.m., Monday to Friday, and ask the operator to transfer you to a Family Justice Centre.
  
See Section XV Part A: Limitation Dates for the limitation periods for beginning property division proceedings for married spouses and common-law spouses.
 
  
 
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Revision as of 09:24, 20 August 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on September 29, 2020.



A. General[edit]

Support is the financial support one person provides for another person (adult or child). This is meant to provide for that person’s reasonable needs (i.e. food, clothing, shelter, education, and medical care). Spousal support is intended to pay for basic living expenses and is highly discretionary. In contrast, child support is an obligation acquired through parenthood; it is mandatory with firm guidelines. Child support always takes precedence over spousal support if a party’s ability to provide financial support is limited.

An application for support may be made under the FLA or DA, but it is essential to look into the standards, limitations and other important differences between the Acts. The parties may also agree on the issue of support and incorporate their agreement into a written document (a separation agreement), which may have the legal status and force of a personal contract. An agreement is not completely determinative of the issue however; the Court will make orders superseding the provisions of an agreement in order to bring the obligations of parties in line with the requirements of statute.

In making an order for spousal support, the Court will not look to the conduct (or misconduct) of the parties, but will consider the “condition, means and other circumstances of each” in making an order. Nevertheless, in Leskun v Leskun, [2006] SCJ No25 (SCC), the Court held that the effect of spousal misconduct on the other spouse’s ability to achieve self-sufficiency should be taken into consideration. In some cases, the Court will refer the matter to the registrar who holds an independent inquiry into the spouses’ assets, income liabilities, etc., and then recommends a “reasonable” support payment. This recommendation does not become an order until a judge confirms it. Arrangements for spousal support can be made as part of a separation agreement, granted at the time of a divorce or, if no order for support is made or it is denied at the time of divorce, within a reasonable time thereafter. Under the FLA, the time limit is 2 years for both married and unmarried couples who have lived together in a marriage-like relationship for at least two years (s 198; Meservy v Field, 2013 BCSC 2378). The exception to this rule is if the couple have a child(ren) together (s 3(1); CAM v MDQ, 2014 BCPC 110).

Orders for child support are almost always fixed according to the schedule of support payments set outin the Child Support Guidelines, which are based on the payer’s gross income and the number of children for whom support is being paid. There is an exception to the strict application of the Guidelines in cases where the parties share parenting time (i.e. where one parent has at least 40% of the time with the child(ren)). In those cases there is not simply a pay or spouse and a recipient, rather the support is typically calculated based on a set-off approach whereby each parent’s support obligation is calculated and one is set-off against the other.

The Court will not grant a divorce if there are not reasonable arrangements made for child support (DA, s11). The level of child support is based on the income of the non-custodial parent and is set out in the Federal Child Support Guidelines.

Under the FLA, the most important changes are in wording. The following are some examples of new vocabulary from the FRA || FLA:

  • Custody || Guardianship/Parenting Time
  • Access || Parenting Time/Contact
  • Maintenance || Support

B. Courts[edit]

Both the Supreme Court and the Provincial Court have the powers to grant or vary support orders made under the FLA, but only the Supreme Court can grant or vary support orders made under the DA. Only the Supreme Court can grant interim relief under the DA, but the Provincial Court can grant interim relief under the FLA.

1. Provincial Court[edit]

The Provincial (Family) Court is often the most accessible court to self-represented litigants. It can deal with applications for support made under the FLA, as well with variation of previous Provincial Court child or spousal support and arrears of child or spousal support orders. Applications can be made at certain Provincial (Family) Courts for a Supreme Court Hearing.

2. Supreme Court[edit]

The Supreme Court can order interim relief under the DA or FLA or make an order for support upon the granting of a divorce order. If a Supreme Court order for support is made under the DA, that order ousts any provincial statutory jurisdiction in that matter. While obtaining interim relief from the Supreme Court is more expensive than obtaining a Provincial (Family) Court order, it can be faster if the application is urgent or if the party wishes to proceed ex parte (without notice to the other side).

C. Enforcement[edit]

1. Family Maintenance Enforcement Act (RSBC 1996, c 127) [FMEA][edit]

The FMEA, passed in 1988, gives the provincial government extensive powers to collect support arrears including:

  • a Notice of Attachment (s 17);
  • 12-month garnishing orders (s 18);
  • Attachment Orders (s 24); and
  • Attachment of money owing by the Crown (s 25) including Income Tax refunds and Employment Insurance benefits directly from the Federal Crown.

The Family Maintentance Enforcement Program (FMEP) can only enforce support orders if the payor is in its jurisdiction or sister jurisdictions that will assist in enforcing the order. For a complete list of sister jurisdictions see https://www.fmep.gov.bc.ca/paying-or-receiving-maintenance/out-of-province-orders/other-jurisdictions/. Any person who receives a support order or separation agreement that has been filed in court may voluntarily register with the program.

2. Reciprocal Enforcement[edit]

If properly filed in BC, a support order from another jurisdiction is enforceable under the FMEA. All other Canadian jurisdictions have similar legislation and will enforce BC orders on registration in their courts. Many foreign jurisdictions will also enforce BC orders; see the table of reciprocating states in the Court Order Enforcement Act, RSBC 1996,c 78.

3. Variation of Orders[edit]

Spousal support orders may be varied where there have been changes in the needs, means, capacities and economic circumstances of each party (DA, s 17(4.1), FLA s 215(1)). The Court may also reduce the amount of support to a spouse where it finds that the spouse or former spouse “is not making reasonable efforts” to become self-sufficient. Note that for a variation application to be successful the applicant must demonstrate that there has been a “material change in circumstances” which means circumstances that, if known at the time of the agreement or Order, would have resulted in a different outcome.

There may also be a variation in child support levels provided there is a change in circumstances per the Child Support Guidelines, which include changes in the payor parent’s income (DA, s 17(4), FLA s 152). If the payor’s income has changed, a variation of the child support order is virtually automatic when one makes an application in court. Provincial Court orders made in other Canadian jurisdictions and in certain reciprocating foreign states may be varied under Division 2 of the Interjurisdictional Support Orders Act, SBC 2002, c 29. The Act creates a system where an application is made through the filing of prescribed documents and filed with the Reciprocals Office in British Columbia, which is responsible for transmitting the documents to the originating jurisdiction for adjudication.

Support orders made under the DA may only be varied through the provisions of sections 17, 18, and 19. In this process, someone seeking to change a support order made in another Canadian jurisdiction must apply to the courts of BC for a provisional order. The provisional order is sent to the originating jurisdiction for a second hearing to confirm the order. Unless the order is confirmed, the provisional order has no effect.

As of March 1, 2021, sections 17, 18, and 19 of the DA will be repealed or revised to include new language related to parenting, as well as new provisions for addressing variation, recission, and suspension of orders (s 17), interjurisdictional proceedings (s 18), and proceedings between a province and another designated jurisdiction (s 19).

4. Agreements[edit]

The Court can enforce written agreements that provide for the payment of child or spousal support., a written agreement concerning support may be filed in the Provincial Court and in the Supreme Court. Once filed, the agreement has the effect of a court order for enforcement purposes.

D. Spousal Support[edit]

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 Spousal Support Advisory Guidelines [SSAG] 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. 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 Chutter v. Chutter, 2009 BCCA 177).

1. Legislation[edit]

a) Divorce Act [DA][edit]

Section 15.2 of the DA creates an obligation to support a spouse. However, s 15.3(1) directs the Court to give priority to child support in any application for child and spousal support under the DA. The entire gross income (guideline income) is used to calculate child support and then any Net Disposable Income that remains (as calculated based on the incomes of both parties and taking into account taxes and other charges) is apportioned between the parties based on the length of marriage. It may be that the result of the payment of child support reduces the Net Disposable Income to very little and in those cases child support takes priority over the sharing of the NDI and there would be little to no spousal support payable. There is no limitation date under the DA.

b) Family Law Act [FLA][edit]

The FLA aligns support considerations with the DA, permits periodic reviews to allow for changing circumstances, and provides guidelines for when a deceased spouse’s estate is obliged to continue payments. Considerations for posthumous support payments include the size of the estate and the need of the payee (s 171). Additionally, child support is to be prioritized over spousal support where a paying spouse has limited resources. (s 173). The SSAG are not referred to in the Act and remain advisory, although Courts in British Columbia give them much deference.

c) Spousal Support Advisory Guidelines[edit]

The final version of the 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 (refer to http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html).

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 Yemchuk v Yemchuk, 2005 BCCA 406 and Redpath v Redpath, 2006 BCCA 338).

2. Principles of Spousal Support[edit]

a) General[edit]

There are three bases for entitlement to spousal support:

  1. Compensatory (to compensate one spouse who was economically disadvantaged as a result of the role that spouse took on during the relationship) (Moge v Moge, [1992] 3 SCR 813);
  2. Non-compensatory (need based) (Bracklow v Bracklow, [1999] 1 SCR 420); and
  3. Contractual (i.e. if there was a marriage or cohabitation agreement setting out terms for support) (Miglin v Miglin, 2003 SCC 24).

Once a party has met the requirement of demonstrating entitlement, you move to the calculation of quantum. When determining quantum of support one factor to be considered is whether the needs of the recipient spouse have been met by the division of assets however if support is compensation based then even if the recipient receives significant assets that is not a basis to reduce support (See Chutter v Chutter, [2009] CarswellBC 1028 (BCCA)). Typically the way this is addressed is to determine what income a party can reasonably earn from the assets received on division and to take that into account in calculating the quantum of support.

b) Factors considered[edit]

Section 15.2(6) of the DA and section 161 of the FLA direct courts to consider the following objectives in determining entitlement to spousal support:

  • to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;
  • to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;
  • to relieve any economic hardship of the spouses arising from the care of the child, beyond the duty to provide support for the child; and
  • as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

Section 15.2(4) of the DA and section 162 of the FLA direct courts to consider the same factors in determining the amount and duration of spousal support, namely, the conditions, means, needs and other circumstances of each spouse, including:

  • the length of time the spouses cohabited;
  • the functions performed by each spouse during cohabitation; and
  • any order, agreement or arrangement relating to support of either spouse.

3. Issues Related to Spousal Support[edit]

a) Employment and Income Assistance and Spousal Support[edit]

Spouses can opt into this program so that the FMEP can continue to assist in collecting the support, but still allow them to keep their support rather than having it deducted from other government assistance they are receiving, if any.

b) Taxes and Spousal Support[edit]

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 (e.g. child support: http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp; spousal support: http://www.mysupportcalculator.ca/Calculator.aspx, http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html). 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 (e.g. 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[edit]

See Section XV Part A for the limitation periods for bringing claims for spousal support for both married spouses and common-law spouses.

E. Child Support[edit]

1. Definition of “Child”[edit]

The definition of “child” varies slightly between the DA (s 2) and the FLA.

Under the DA, the definition of “child” is someone who is under the age of majority (19 years in B.C.) and who has not withdrawn from the parent’s charge, or who is at or over the age of majority but unable, by reason of illness, disability or other cause, to withdraw from parental charge or to obtain necessaries of life. Therefore, under the DA, there may not be an obligation to pay child support to a child under 19, if the child has already withdrawn from the parent's charge.

Under the FLA, the definition of “child” is a person who is under 19 years of age or a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessities of life or withdraw from the charge of their parents or guardians.

2. General[edit]

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 web sites, including J.P. Boyd’s helpful site, offer online child support calculators (see 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. 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 aids, prescription drugs, speech therapy, contact lenses and professional counselling), expenses for child care in order to maintain employment (see 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.

3. Legislation[edit]

a) Divorce Act [DA][edit]

The DA provides for support orders as a corollary to divorce under s 15.1, with the discretion to extend support for a child who is over the age of majority and is unable, by reason of illness, disability or other cause, to withdraw from their charge. If the majority-age child is otherwise unable to obtain the necessaries of life – for example, if the child is a university student – support orders may also be extended (s 2(1)).

An order for child support made under the DA has effect throughout Canada (s 14). Under s 17(1) of the DA, any court of competent jurisdiction, as defined by s 5, can vary, rescind, or suspend an order.

Children born within the marriage and adopted children are treated equally under the DA. However, some controversy remains as to whether a stepchild, for whom the respondent stood in loco parentis (in place of the parent), qualifies for support under the DA. Child support will be assessed in light of the biological parents' support obligation.

b) Family Law Act [FLA][edit]

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 (MA v FA, 2013 BCSC 1077). If the child was removed from the family by the state (DZM v SM, 2014 BCPC 198) or refuses to visit, this is not considered voluntary withdrawal (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 (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 (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 to s 31 of the FLA or make an order under s 33(2) of the FLA.

c) Child Support Guidelines[edit]

The Federal Child Support Guidelines are federal regulations that determine the amount of child support owing, and vary from province to province. The guidelines establish how much child support must be paid based on the payor’s income and the number of children for whom support is to be paid. For more information refer to the resources listed at the end of the chapter.

d) Other Legislation[edit]

Section 215 of the Criminal Code places a legal duty on parents to provide their children with the necessaries of life until they reach the age of 16, unless the child is able to provide the necessaries of life independently.

4. Limitation Period[edit]

See Section XV Part A for the limitation periods regarding child support claims.

5. Interjurisdictional Support Orders[edit]

Parents living in different provinces or countries can apply for or enforce support orders without needing to travel to the other jurisdiction. Under the Interjurisdictional Support Orders Act, SBC 2002, c 29, many jurisdictions have agreed to recognize family support (maintenance) orders and agreements made elsewhere. British Columbia has reciprocal agreements with all Canadian provinces and territories and with several foreign countries.

For a list of all reciprocating jurisdictions, see the Schedule in the Interjurisdictional Support Orders Regulations, BC Reg 15/2003 at www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/10_15_2003.

Appeals of decisions made under this Act must be made within 90 days of the ruling (s 36(5)) but, despite this, the Court to which an appeal is made may extend the appeal period before or after the appeal period has expired (s 36(6)). The website http://www.isoforms.bc.ca provides a questionnaire under the heading “forms select” to determine which application forms are required for a client’s specific situation. Forms can be accessed online or be mailed to you. A guide to filling out the forms can be found at www.isoforms.bc.ca/shared/pdfs/GuideIntroInstructions.pdf. Completed forms can be submitted to:

Reciprocals Office

Vancouver Main Office Boxes

P.O. Box 2074

Vancouver, B.C. V6B 3S3

In BC, Family Justice Counsellors have the ability to 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, call Enquiry B.C. at (604) 660-2421 between 8:00 a.m. and 5:00 p.m., Monday to Friday, and ask the operator to transfer you to a Family Justice Centre.


© Copyright 2021, The Greater Vancouver Law Students' Legal Advice Society.