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This chapter will discuss the basics of child support, the criteria for child support orders under the Divorce Act and the Family Relations Act, and briefly look at how to get a child support order inside and outside the province. This chapter also looks at the income tax implications of child support, what happens when someone entitled to receive child support goes on social assistance, and the rights of children to claim child support. Child support calculators are available in the next chapter in this section, Child Support > The Guidelines. Introduction After a couple separates, the couple usually finds that their individual financial situations have gotten worse. Instead of the family income paying for one rent cheque, one phone bill, one electricity bill and so forth, the same amount of income must now cover two rent payments, two phone bills, two electricity bills, and two sets of groceries. If a child lives mostly with one of the two parents, that parent will inevitably bear a disproportionate amount of the child's expenses, for things like school fees, food and clothing. Child support is intended to help distribute the cost associated with raising a child between the child's parents. Child support is a payment made by one parent to the other to defray the costs that parent bears because of the child and, consequently, to help improve the child's living conditions. Child support is not a supplement to spousal support, it is money paid for the benefit of the child rather than the parent with whom the child mostly lives. Nor is child support a fee paid in exchange for time with the child. Access and child support are, and should be, entirely different issues. Child support is paid on the principle that both parents have a duty to financially contribute to the child's upbringing. The simple fact of biological parenthood will trigger this obligation, even if the paying parent never sees the child and has no role in the child's life. Child support can also be payable by step-parents and persons who stand in the place of a parent for a child, although the rules are slightly different for these people and their obligation is often tempered by a biological parent's obligation. An order for child support, also called "child maintenance" and "palimony," may be made under s. 15.1 of the federal Divorce Act or ss. 88 and 91 of the provincial Family Relations Act. A couple may also agree on the payment of child support in a separation agreement. Either way, the amount of support awarded must conform to the rules set out in the federal Child Support Guidelines. The Guidelines contain a series of tables, particular to each province, that set out the amount a child support order must be, based on the payor's income and the number of children for whom support is being paid. The exceptions to this basic rule are set out in the chapter Child Support > Exceptions to the Guidelines. Certain changes to the Child Support Guidelines took effect on 1 May 2006. These are discussed in the next chapter, Child Support > The Guidelines. For most people, the changes will result in an increase in the amount of child support payable. Note that both the Divorce Act and the Family Relations Act require that the courts give child support priority over spousal support when a parent makes an application for both orders. In other words, if there isn't enough money to pay both, child support will take precedence. Back to the top of this chapter. The Divorce Act A court can only make an order for child support under the Divorce Act if it has the jurisdiction to make an order for the divorce of the child's parents: the parents must be or have been legally married, and the parent making the application must have lived in his or her province for at least one year before the application is made. Child support is, under the Divorce Act, a kind of "corollary relief." All relief claimed in a divorce proceeding is corollary relief apart from the application for the divorce order itself. Applications under the Divorce Act can only be heard by the Supreme Court. In the Divorce Act, children are referred to as "children of the marriage." A child must fall within the act's definition of a "child of the marriage" in order to be eligible for support. There are a couple of important definitions in s. 2(1) of the act which apply in determining whether a child is a "child of the marriage:" "age of majority", in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age; "child of the marriage" means a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; As well, s. 2(2) of the act says that: For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses or former spouses includes (a) any child for whom they both stand in the place of parents; and(b) any child of whom one is the parent and for whom the other stands in the place of a parent. Taken together these definitions mean that:
With regard to this last point, the Divorce Act says that an "adult child" can continue to be eligible for child support as long as he or she cannot withdraw from his or her parents' care. The two main reasons why a child might not be able to "withdraw" are: the pursuit of a post-secondary education; or, a serious, chronic illness which prevents the child from becoming self-supporting. The factors a court will consider in determining whether a child's academic career qualifies him or her as a "child of the marriage" include the following:
In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program. As far as "age of majority" is concerned, keep in mind that it is the provinces which have the authority to set the age of majority, not the federal government. In British Columbia, the age of majority is 19. In some other provinces the age of majority is 18. Statutory Provisions The following are the primary sections of the Divorce Act dealing with child support:
Back to the top of this chapter. The Family Relations Act A parent can apply for child support under the Family Relations Act whether the parent is married to the other parent or not. People other than parents can also apply for child support if they are caring for the child, including grandparents who have custody of their grandchildren or people who have been made a guardian of a child. Both the Supreme Court and the Provincial (Family) Court and the provincial court can make orders for child support under the Family Relations Act. Definitions play an important role in determining eligibility and responsibility for child support under the Family Relations Act, just as they do under the Divorce Act. Section 88 of the Family Relations Act states that each parent of a child is responsible for the support of that child, and s. 1(1) defines a "child" and a "parent" as follows: "child" means a person who is under the age of 19 years; "parent" includes (a) a guardian or guardian of the person of a child, or(b) a stepparent of a child if(i) the stepparent contributed to the support and maintenance of the child for at least one year, and(ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child; Further, s. 1(2) provides that: For the purpose of paragraph (b) of the definition of "parent" in subsection (1), a person is the stepparent of a child if the person and a parent of the child (a) are or were married, or(b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage-like relationship may be between persons of the same gender. The definition of "child" is modified by s. 87 of the Act for the purposes of child support, which echoes the Divorce Act's definition: "child" includes a person who is 19 years of age or older and, in relation to the parents of the person, is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life As you can see, these definitions cast a very wide net. A few of important points:
With regard to this last point, the two main reasons why a child might not be able to "withdraw" under s. 87 of the act are: the pursuit of a post-secondary education; or, a serious, chronic illness which prevents the child from becoming self-supporting. The factors a court will consider in determining whether a child's academic career continues to qualify the child for support include the following:
In general, the courts will allow an adult child to benefit from child support for one program of post-secondary study — one degree or one diploma — so long as the child is enrolled full-time. Where one or both of the parents have a very high income and had always expected, during the marriage, that the child would take an advanced degree, child support can be payable for more than one degree program. Step-Parents and Child Support The Family Relations Act plainly states that step-parents can be responsible for paying child support just as biological parents are responsible for paying child support. This has meant that in some cases, multiple people who meet the act's definition of "parent," "step-parent," or otherwise stand "in the place of a parent," can be simultaneously responsible for paying child support for the same child. In fact, there are a few cases in which parents have engaged in serial long-term relationships, each of which are long enough to attract a child support obligation from the successive partners of those parents. The Child Support Guidelines, perhaps on the principle that the more support a child has the better, does not offer a discount where there are multiple payors. A 2004 case of the British Columbia Supreme Court, H.J.H. v. N.H.H., offers some guidance for step-parents trying to stick-handle around this issue. In that case, the parties had been married for less than three years when they separated. Each had been previously married, and the problem centred around the mother's child from her previous relationship. The court found that the step-parent was not responsible for paying support, based on the following factors:
Other cases have taken the biological parent's obligation into account when assessing child support against a step-parent, and required the step-parent only to make a sort of top-up payment rather than pay at the full amount set out in the Guidelines. Statutory Provisions The following are the primary sections of the Family Relations Act dealing with child support:
Back to the top of this chapter. Obtaining a Child Support Order There are five issues a court must consider before a child support order can be made:
First, the court must find that the person applying for a child support order has the standing to make the application. This is a matter of definition, described above. Under the Divorce Act, the applicant must be a married person who has lived in the province in which they the application is made for at least one year. Under the Family Relations Act, the applicant can be anyone included in the definitions of "parent," and, if the claim is being made against a step-parent, the claim must be made within one year after the step-parent stopped contributing to the child's maintenance. Second, the court must find that the child qualifies as a "child" as defined by the Family Relations Act or as a "child of the marriage" as defined by the Divorce Act. Third, the court must find that the person against whom the claim is made is liable to pay child support. This is also a matter of fitting within the definitions. Fourth, if the first three conditions have been met, the court must consider how long the payor's obligation should last. In reality, this issue is not usually argued, as both the Divorce Act and the Family Relations Act have cut-off dates, that is, dates after which the child is no longer eligible to receive support. Most orders and agreements limit themselves by providing that child support shall be paid until, for example, "the child is no longer a child of the marriage as defined by the Divorce Act" or "the child reaches the age of 19." The question of a termination date for support usually only crops up where the child is an "adult child" engaged in post-secondary studies or otherwise "unable to withdraw from the charge" of his or her parents, and the court must then consider the factors described earlier. Finally, the court must fix the amount of the child support which is payable. The court must first make a finding as to the payor's annual income, and then fix the amount of support payable according to the tables set out in the Child Support Guidelines for the number of children at issue at the payor's income. There are exceptions to this basic rule, such as in the case of payors who see their children for more than 40% of the children's time or if custody of the children is split between the parents. These and more exceptions are discussed in the chapter Child Support > Exceptions to the Guidelines. Getting an Order inside British Columbia A parent seeking a child support order can apply for that order in either the Supreme Court of British Columbia or the Provincial (Family) Court. Whichever court the parent wants to proceed in, the parent must start a legal action. The process for starting a law suit is described in the chapter The Legal System > Starting an Action. Getting an Order outside British Columbia If a parent wants to get child support from someone living outside of this province has two choices:
The Interjurisdictional Support Orders Act allows a person living in BC to start a process that will result in an order being made in the jurisdiction in which the other parent lives. The applicant fills out a bunch of paperwork here, and gives it to the provincial Reciprocals Office. A staff member will forward that package to the Reciprocals Office where the other parent lives, and the court there will have a hearing, on notice to the other parent, which may result in a child support order being made. The law that will apply is the law where the other parent lives, which will not be the Family Relations Act or the Divorce Act. Only certain jurisdictions have agreed to this process. If the country where the other parent lives hasn't made an agreement with British Columbia, someone who wants to get a child support order will normally have to start an action in the place where the other parent lives. This will require hiring a lawyer in that country, and the law that will apply will be the laws of that country, not the Family Relations Act or the Divorce Act. The countries that will cooperate with a proceeding under the Interjurisdictional Support Orders Act are: South Africa, Zimbabe, Austria, the Czech Republic, Germany, Gibraltar, Norway, the Slovak Republic, the United Kingdom, the United States of America, the Special Administrative Region of Hong Kong, Singapore, Australia, Fiji, Papua New Guinea, New Zealand and Barbados. While it is possible to get a child support order here, it may be difficult or impossible to enforce that order where the payor lives because of an old rule of the common law that says that the support orders one country can't be enforced in other countries. This rule is, in fact, the reason why the provinces of Canada decided to each pass a version of the Interjurisdictional Support Orders Act. The British Columbia Reciprocals Office can be found online at www.isoforms.bc.ca. Back to the top of this chapter. Income Tax Considerations It used to be the case that the person paying child support, the "payor," could claim an income tax deduction for his or her support, while the person receiving the support, the "payee" or "recipient," had to claim it as taxable income. On 25 April 1997, the federal Income Tax Act was amended to do away with this rule, and now child support payments are neither deductible for the payor nor taxable for the payee. These changes do not apply to court orders or family agreements made before 1 May 1997, when the Child Support Guidelines came into effect. Payors with old orders or agreements can continue to claim support as a deduction while payees must claim it as taxable income. However, if the parts of the order or agreement which deal with child support are changed after 30 April 1997, the new rules will apply and the provisions for child support will become tax neutral. The portion of a lawyer's bill attributable to obtaining or enforcing a child support order is tax deductible. The cost of defending a claim for child support is not deductible. To claim this deduction, the lawyer must write a letter to the Canada Revenue Agency setting out what portion of his or her fees were attributable to advancing a child support claim. If you intend to ask your lawyer for a letter like this, you must tell your lawyer as soon as possible, preferably the moment the lawyer takes your case. The lawyer will be required to keep a log of his or her time spent on the claim, and many lawyers will be unable to winnow out the parts of their bills dedicated to child support that were recorded long ago. Back to the top of this chapter. Child Support and Social Assistance Normally, an obligation to provide support only arises because of a relationship between two adults. When someone goes on welfare, a support obligation is created between the government and the individual. If there is someone else who might be obliged to provide support to that individual, the provincial government would prefer that this person pick up the tab rather than the tax payor. Recipients of Social Assistance Applying for Child Support If you are applying for social assistance or are receiving social assistance in British Columbia, you are required to sign a form that allows the government ministry responsible for social assistance to take whatever steps are required to collect any child support payments you may be entitled to and keep the child support it collects. This is called "assigning" your child support rights to the ministry. You may be allowed to keep some of the child support that the ministry collects in addition to your social assistance payments; your case worker will tell you how much. The collection of child support payments for people on social assistance is run by the "Family Maintenance Program," a different organization than the "Family Maintenance Enforcement Program." FMP has the authority to pursue child support however it sees fit and can apply for orders or apply to vary child support orders as it sees fit. You will be required to co-operate with FMP's actions, but they will be responsible for managing any court applications they begin. Applying for Child Support from a Recipient of Social Assistance You can apply to receive child support from a parent who is receiving social assistance, but don't except to get a great deal. The Guidelines do not require that a parent pay child support if the parent's annual income is less than $9,000.00 per year. Even if you're not likely to get a lot of money out of the other parent, it is often a good idea to make the application and get an order, since it will at least establish the payor's legal obligation to provide support. It will be a lot easier to ask for an increase in the amount payable later on, when the payor is back on his or her feet, than it will be to apply for an original child support order. As well, some people who might be normally responsible to pay support (like a step-parent or someone in a common-law relationship with a parent) will lose their obligation to pay support if the application isn't made within a certain period of time. It can be critical to get an order that child support be paid early on. Back to the top of this chapter. Children's Right to Claim Child Support In almost all cases, it is the parent who claims child support on behalf of a child, not the child his- or herself. However, the right to benefit from the payment of child support belongs to the child, not the the parent. This is the fundamental reason why the court will not uphold an agreement in which one parent agrees not to pursue a claim for child support in return for the abandonment of the other parent's rights to see the child and play a role in his or her life. Parents cannot bargain away rights that do not belong to them. It follows, then, that if child support is the right of the child and parents cannot bargain that right away, children should be able to ask for support on their own, without having to go through a parent. When There is an Order Between the Parents A parent can only be subject to a single order to pay child support with respect to a particular child. This means that if there is an order between the parents to pay child support, the child cannot obtain a new order. The child can, however, apply to enforce that order if the parents are not complying with the order and arrears of support are owed. When someone does not pay child support, or pays less that he or she is required to do, "arrears" build up. The arrears are the sum of the money that should have been paid according to the court order but wasn't paid. Arrears are a "judgment debt," like any other order that requires someone to pay money to someone else. Judgment debts can be enforced under the provincial Court Order Enforcement Act, which allows the debtor's wages and benefits to be garnished, real property to be sold and personal property to be liquidated to pay off a judgment debt. Interest will accrue on judgments debts, calculated under the Court Order Interest Act. A child who is the subject of a child support order can apply to enforce any arrears as a judgment debt. The child can apply to enforce the old order starting when he or she reaches the age of majority, 19 in British Columbia. There is a limit to children's ability to enforce arrears. According to s. 3(3)(f) of the Limitation Act, the claim must be brought within 10 years of the child first being able to apply to enforce the judgment debt. In other words, the claim must be made before the child turns 29. When There isn't an Order Between the Parents Nothing prevents a child from applying for child support, as long as the child would be entitled to receive child support. The explanation that follows is a bit complicated, so be patient. First, the child cannot apply for child support under the Divorce Act, because that act only applies to "spouses," defined as people who are or who used to be legally married to each other. Under s. 15.1 of the act, the court can only order "a spouse" to pay child support. That leaves the Family Relations Act. Section 88(1) of that act says that "each parent of a child" is responsible for supporting that child. Section 91(1) says that "a person" can apply for a support order "on his or her own behalf." Second, for so long as the child's parents are together and the child continues to live with them, the child will not be entitled to ask for a child support order as the court will assume that the child's needs are being met. Why would the court make this assumption? Think of it like this. The Divorce Act, the Family Relations Act and the Child Support Guidelines say that both parents are liable for supporting a child. In fact, s. 215 of the Criminal Code makes it an offence not to provide a child with the "necessaries of life." The family law legislation also assumes that the payment of support by one parent under the Guidelines is not going to be a complete payment of all of the child's needs. Section 1(b) of the Guidelines says that the purpose of the Guidelines is ensure that children benefit "from the financial means of both spouses after separation." In other words, payments according to the Guidelines child support tables are not assumed to cover all of a child's costs, and the parent receiving the support payments is assumed to financially contribute to meeting those costs as well. As a result, if the child is living with the parents, and the parents have not yet separated, the child will not be able ask for a child support order. Third, a child seeking a child support order must qualify as a "child," as defined by s. 87 of the Family Relations Act, in order to claim child support. While it is possible that a court could make a retroactive order for support on behalf of a person who no longer qualifies as a "child," Now, let's say the parents are separated and the child is living with one of his or her parents. In a case like this, the parent with whom the child is living has the responsibility of applying for support. As the child is under the age of 19, the child is under a legal disability and is not able to start a law suit without the assistance of a "litigation guardian," formerly known as a guardian ad litem. However, since the parent the child is living with is responsible for applying for child support and litigation guardians must be appointed by the court, the court would likely to refuse to appoint the litigation guardian. If a child is older than 19 but still qualifies as a "child" under s. 87 of the Family Relations Act (typically because the child is ill or disabled and cannot work to support his- or herself, or because the child is enrolled in a full-time postsecondary program), the child could certainly apply for child support. The child is over the age of majority and able to start an action without a litigation guardian. The adult child will, however, have to prove that he or she is in financial need. The court will not make a support order automatically. Having a job, being married or in a common-law relationship with someone will undermine the aduld child's chances of success. Let's look at another scenario. Let's say that the child is younger than 19 and is not living with his or her parents. In a case like this, the parents would be responsible for paying support to the child but the child would have to start an action to claim child support, and would have to be represented by a litigation guardian. Even assuming that the court is prepared to appoint a litigation guardian, getting a child support order is not necessarily a slam dunk. There are a few cases when minor children — children under the age of majority — have been found not to entitled to receive child support. Typically, this happens when a child has run away from home, has found a job and is living independent of his or her parents. A financially self-sufficient child who has left his or her parents' home may not be entitled to receive child support payments from them, especially where the child has repudiated or refused to have a relationship with his or her parents. Summary That was all a bit complicated. Here's what it boils down to:
If you are a child thinking of making a claim for child support, you really should speak to a lawyer. This area of the law is not straightforward at all. Back to the top of this chapter. Site Navigation
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