Mulligan Tam Pearson Lawyers

Child support is the legal obligation of the parents to continue to provide for the child/children after separation. In a typical case, the child will live with one parent (the custodial parent) who provides for the child directly. The other parent (the non-custodial parent) provides by giving money to the custodial parent for the benefit of the child.

Most likely. The test for whether child support is payable differs slightly between the Divorce Act and the Family Relations Act. Under the Divorce Act, any child (including a stepchild) in the relationship with whom you “stand in the place of a parent” will be entitled to child support – whether or not they are biologically your children. However, even if you are married and there is no obligation arising from the Divorce Act, there will likely still be obligation to pay child support under Family Relations Act (see the answer below).

The child support obligation arising under the Family Relations Act is broader in that it captures couples who are married as well as common law spouses. The test for obligation for child support under the Family Relations Act is whether the stepparent contributed to the support and maintenance of the child for at least one year. This “one year” does not need to be consecutive (in a row). Note that, under the Family Relations Act, it is not required that you “stand in the place of a parent” before attracting an obligation to pay child support. However, in the case of stepchildren, the amount of support payable may be reduced by any contribution the biological parent would be making.

No. The terms are used interchangeably under the Divorce Act and Family Relations Act.

The amount of child support payable is based on the earning capacity of the non-custodial parent. The Federal Child Support Guidelines set out this amount. While it is possible to vary from the Guidelines, there must be a very good reason before a court would agree to it. There may also be additional expenses based on the specific needs of each child, for example, special medical expenses, or educational expenses like private school.

If there is a court order or an agreement in place, then the obligation remains until varied. However, on a review, the reason for the unemployment will be carefully examined. If there is a legitimate reason for the unemployment, the amount of child support could be varied. On the other hand, one cannot simply choose not to work in order to avoid paying child support. In that case, the court will set an amount of income that the person can earn (called “imputing income”). Child support will then be based on the imputed income, regardless of how much the person actually earned.

If a child spends no less than 40% of the time with both parents, this is called a “shared custody” situation. In this case, as a starting point, the higher-earning parent would pay the guideline amount to the lower-earning parent, less the guideline amount of the lower-earning parent. This is only a starting point, to be further adjusted based on the particular situation. For example, in a shared custody situation, if parent A’s guideline amount is $1,200 and parent B’s guideline amount is $700, A would pay B $500 per month, as a starting point. However, it is generally recognized that it costs more to raise a child in two separate homes, and so this amount is typically adjusted upward slightly.

Generally, the obligation to pay child support ends when the child turns 19 years of age (the age of majority in BC). However, there are circumstances which will extend the obligation beyond that time. These include if the child has an illness or disability, or if the child is pursuing post-secondary education.

Yes. If there is a material change in circumstances, the amount of child support can change, either by agreement, or by court order.

Yes. Child support is providing for the child. It is not payment for seeing the child. Access is the parental right to spend time with the child, and also the child’s right to spend time with the parent. The two are distinct concepts and one is not predicated upon the other. Being denied access does not erase the obligation to pay child support.

These include, for example, child care, special medical expenses (orthodontics, speech therapy, e.g.), private school, post-secondary education and extracurricular activities.

If the parties are not able to reach an agreement, the court will review the particular expense and see if it is necessary in relation to the child’s best interest, whether it is reasonable in relation to the means of the spouses and child, and the family’s spending pattern prior to the separation.

As a starting point, the expenses are shared between the spouses in proportion to their incomes. However, the court retains the power to vary from this formula.