Spousal and Child Support (3:X)

A. General

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 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 responsibilities (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

Both the Supreme Court and the Provincial Court have the powers to grant or vary support orders made under the FRA and 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 The Provincial (Family) Court is often the most accessible court to self represented litigants. It candeal 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 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 1.Family Maintenance Enforcement Act (RSBC 1996, c 127) [FMEA] This Act, 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 program 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. Soon, there will be a change in this collection method. It will no longer the case that the provincial government will help people track down people not paying the required support orders. Under this new scheme, any support received by a person will not be deducted from any benefits that the person might also be receiving. This change is only for people who are on income assistance, but they can opt in so that the Family Maintenance Program will pursue support on their behalf.