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On Nov. 23, 2011, a new family law bill was passed in the B.C. legislature. The Family Law Act will come fully into force on March 18, 2013. The act places the safety and best interests of the child first when families are going through separation and divorce. It also clarifies parental responsibilities and the division of assets if relationships break down, addresses family violence and encourages families to resolve their disputes out of court.
Some of the information contained in this article will be affected by the changes in the legislation coming into force on March 18, 2013.
What is Child Support?
Child support, sometimes known as “maintenance”, is money paid by one parent to the other parent for the financial benefit of the child. Child support is paid when the relationship between the parents has ended. Normally, the parent who has the child for the least amount of time pays support to the parent who has the child for the most amount of time.
Why is child support paid?
All children have the right to receive financial support from their parents. The parent who has the child for the most amount of time supports the child in many different ways, including financial support. The parent who has the child for the least amount of time pays child support to the other parent to help make sure that the child’s expenses are met. Child support can be paid because of a written agreement between the parents, such as a separation agreement, a child support agreement or a parenting agreement, or because of a court order.
Who has to pay child support?
Biological parents and parents who have adopted a child are obligated to pay child support, including when the parents are of the same sex, when they are married and when they are in a common-law relationship.
Someone who married a parent can be obliged to pay child support to the parent under the Divorce Act as long as the step-parent had a parent-like relationship with the child. Under the Family Relations Act, married spouses and common-law spouses can be obliged to pay child support to the parent as long as the step-parent contributed to the support of the child for at least one year and the application under the Family Relations Act is brought within one year from the step-parent’s last contribution to the support of the child. Step-parents can be obliged to pay child support even when the other biological parent is already paying child support.
How do you get child support?
Child support can be agreed to in a separation agreement. If you can’t agree, you can apply to the court for an order that child support be paid by starting a court case. If you are receiving income assistance, you will have assigned your right to apply to court for child support to the Family Maintenance Program, and the program will decide whether to make the application.
Which court do you apply to?
You have two options. You may apply to either Family Court or the Supreme Court. Each court has its own set of forms and rules. Usually, it’s simpler and less expensive to obtain a child support order in Family Court. However, Family Court cannot deal with claims for divorce or the division of property. In these cases, it’s usually better to proceed in Supreme Court, where everything can be dealt with in one court case.
How is child support determined?
The amount of child support payable is determined by the Child Support Guidelines. The Guidelines specify a certain amount of support, depending on the paying parent’s income and the number of children support is being paid for. You can find the Child Support Guidelines on the federal Department of Justice website at www.canada.justice.gc.ca. Select “Programs and Initiatives” and then the “Child Support” link.
People who have orders or agreements about child support made before May 1, 1997 when the Guidelines came into effect, can go back to court if they wish to get an order under the Guidelines. If a new order is made, the tax rules that apply will change.
What are “special or extraordinary” expenses?
In some cases, both parents can be obliged to contribute to the child’s “special or extraordinary” expenses on top of child support. There are four types of expenses that may qualify as special or extraordinary expenses:
• child care expenses, so the parent who looks after the child can work or go to school in order to get work
• medical or health related expenses for the child
• some educational expenses, including for post-secondary education
• some expenses for extracurricular activities
These types of expenses don’t automatically qualify as “special or extraordinary” expenses – the expenses have to be reasonable in light of the parent’s financial circumstances and the child’s needs. As a result, piano lessons might qualify as a special or extraordinary expense for one child but not for another.
How are “special or extraordinary” expenses paid?
When an expense qualifies as a “special or extraordinary” expense, both parents must contribute to the cost of the expense in proportion to their incomes.
If both parents have the same income, they would each pay for one-half of the cost of the expense. If parents have different incomes, they pay in the proportion of their income to the total income of both parents. For example, say a father has an income of $20,000 and a mother has an income of $30,000. Together, their incomes total $50,000. Of this total amount, the father earns $20,000 or 40%, and the mother earns $30,000 or 60%. The father would then pay for 40% of the cost of an expense and the mother would pay for the remaining 60% of the cost.
What if the parents share the care of the child or children?
If the paying parent looks after the child at least 40% of the time, called “shared custody”, the parent may be able to pay a smaller amount of support than what the Child Support Guidelines normally require. In cases like this, the parents should take a careful look at their financial circumstances and the needs of the children.
Where parents have shared custody, the court can make an order that child support be paid in a lower amount than the Guidelines require or the parents can reach an agreement that a lower amount be paid.
What if each parent has a child in their care?
If each parent has the primary care of one or more of the children, called “split custody”, each parent is supposed to pay the full Guidelines amount of child support to the other parent for the children in that parent’s care. The amount that changes hands is the difference between the higher amount and the lower amount.
For example, say that a father would have to pay a mother $400 per month for the children in her care, and the mother would have to pay the father $250 per month for the children in his care. The father would pay the mother $150, the difference between what he owes her and what she owes him.
Where parents have split custody, the court can make an order that child support be paid in a lower amount than the Guidelines require or the parents can reach an agreement that a lower amount be paid.
What if the amount set by the Child Support Guidelines is too high or too low?
In certain rare circumstances the court can order that more or less child support be paid than what the Child Support Guidelines require. For this to happen, a parent must show that the payments required by the Guidelines would cause “undue hardship”. Undue hardship means that the required payments would be very unfair and cause a very significant financial problem, not just hardship in other words, but an undue hardship.
When a claim of undue hardship is made, the court will look at the standard of living of each parent’s household, including the income from a new spouse or partner, and weigh each household’s standard of living against the other. Proving undue hardship is complicated, and you should speak with a lawyer.
Do you have to disclose your finances?
To obtain an order for child support, financial disclosure must be made. The paying parent must provide proof of their present income, together with their recent income tax returns, and other financial documents which may be important. In some cases, such as where the parents are paying for “special or extraordinary” expenses or share the children’s time, the receiving parent will also be required to make financial disclosure.
What is an “interim” support order?
After a court case is started, a parent can apply to court for an interim order for child support. The court will usually make an interim support order. Interim orders are meant to last until the claim is settled or goes to trial, and can usually be obtained relatively quickly. Interim orders remain in effect until they are either changed by another interim order or a final order is made at the end of the court case.
How long is child support paid for?
Child support is paid for as long as the child continues to fall within the legal definition of a “child”. In BC, a child is someone under the age of 19, or who is 19 or older but financially dependent on a parent. For example, a college student or an adult child with serious health problems may continue to qualify as a child even though they are 19 or older.
Can you get a child support order to cover the past?
Child support orders can be made to start at an earlier date. These are called “retroactive” orders. In general, the court will make a retroactive order when there is an obligation to pay child support, or an obligation to pay a higher amount of support than what has been paid, but usually for no more than three years before the date of the court hearing.
What if circumstances change and child support needs to change?
Either parent can apply to have an order or agreement about child support changed if there is a change in circumstances, such as an increase or decrease in someone’s income or a change in the children’s living arrangements. The law requires updated financial information to be exchanged each year or if there’s a change of income. If there has been a change, the Child Support Guidelines should be consulted to determine what new amount of child support should be paid.
What can you do if child support isn’t paid?
If a parent doesn’t pay the child support owing under an order or an agreement, the Family Maintenance Enforcement Program can help you. Program staff will help you collect support payments that are owed and monitor a support order to make sure payments continue to be made.
Where can you get help or more information?
• Family Justice Counsellors in Family Justice Centres throughout BC can help you with understanding the Child Support Guidelines, preparing a separation agreement, and obtaining a support order in Family Court. Their services are free. Phone 604.660.2421 in the lower mainland, 250.387.6121 in Greater Victoria or toll-free 1.800.663.7867 elsewhere in BC, and ask to speak with a Family Justice Counsellor in the Family Justice Centre nearest you. Also see the Family Justice website at www.ag.gov.bc.ca/family-justice.
• For more information about the Child Support Guidelines, a Child Support Office is available in Vancouver, Surrey, Kelowna and Nanaimo. Call 604.660.2084 in the lower mainland or toll-free 1.888.227.7734 elsewhere in BC.
• Visit JP Boyd’s BC Family Law Resource at www.bcfamilylawresource.com and click on “Child Support”. This website also has calculators for child support and children’s special or extraordinary expenses.
• See the federal Department of Justice website at www.canada.justice.gc.ca, and search under “Programs and Initiatives” and then the “child support” link.
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