Child Support

Child Support Entitlement / Eligibility - Child support is the right of the child! Every child has the right. Child under age 19 of whom you are a parent FLA 146 child is person <19 or older and unable due to illness disability or another reason to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians (also includes educational pursuits) Who has to pay: Parent/Guardian 147(1)(a) FLA exceptions: IF child is a spouse; 147(1)(b) child voluntarily withdraws from parent’s charge (except in cases of family violence) Step parent entitlement: 147(4) has to have contributed to the support of the child for at least one year 147(5) hierarchy – step parent support is secondary to that of parent/guardian In loco parentis. Objective test under DA Test if person stands in place of parent is dependent on the nature of the relationship btwn parent and child, including but not limited to: Chartier v Chartier: - Whether the child participates in the family as would a bio child - Whether the person provides financially for the child - Whether the person disciplines the child as a parent - Whether they represent to the child, family, or beyond that the person is a parent to the child - The nature or existence of the child’s relationship with the absent bio parent An unsatisfactory relationship or absence of relationship between stepparent and child does not terminate their obligation to pay child support Shaw v Arndt (or breakdown of relationship Chartier v Chartier) Existence of a parental relationship is determined at the time the family was functioning as a unit, not after separation Chartier v Chartier Shaw v. Arndt [2016] B.C.J. No. 298 (BCCA) Importance of Intention – - A stepparent may be liable to support the child when the biological parent is unable to do so. - The quality of the parent-child relationship becomes relevant only in the most egregious circumstances otherwise it should have no bearing on the need to pay child support. - Goal: Try to maintain standard of living of child M.J.L. v. G.H., 2015 BCPC 208 * special circumstances where child support paid for adult children (education and living with disability) [6] The issues are whether S.M.H. continues to meet the definition of “child” in Part 7 of the Family Law Act, S.B.C. 2011, c. 25 (the “FLA”) and, if so, whether and to what extent M.J.L. remains liable to pay child support. Principles for whether a child >19 should still be eligible for child support: (para 28-29) (1) Onus is on the person seeking support – must prove they meet the definition of child as in FLA s 146 (2) Meets definition of child as per s 146 FLA “unable to withdraw from their parents charge or obtain the necessaries of life because of illness, disability or another reason” (3) The receipt of disability benefits does not absolve a family from providing financially for the child – case specific obligation and not based on ‘poverty level necessities) (4) Disabilty – determine whether the child is employable, and extent of disability (5) Being in the ‘charge’ of the parent – means being in the care, custody or responsible possession of that parent (6) Pursuing education – Farden Factors listed in MJL v GH In considering whether a child’s educational pursuits justify an adult child remaining a child for purposes of child support, the following factors from Farden v. Farden (1993), 48 R.F.L. (3d) 60 (BCSC) may be helpful: (1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies; (2) whether or not the child has applied for or is eligible for student loans or other financial assistance; (3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do; (4) the ability of the child to contribute to his own support through part-time employment; (5) the age of the child; (6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought The “Farden factors” are of less importance when assessing an adult child with disabilities Earle v Earle, pp 15-16 (basic principles continue to apply) Maintenance – Basic Principles 1. Maintenance Generally a. Parents have a joint and ongoing legal obligation to support their children. b. It is the child, not the other parent, who has the right to maintenance. c. The payment of maintenance is based on not just what a parent does earn but what a parent can earn. 2. Variation a) There has to be a material change of circumstances, a change that is significant and long lasting. b) A change to the Guideline amount is not automatic. 3. Arrears Basic Principles a) There is a heavy duty on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long-lasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so. b) If arrears are not reduced or cancelled, the court can order a payment plan over time if convinced the arrears cannot be paid right away. Examples a) Arrears will only be cancelled if the person is unable to pay now and will be unable to pay in the future. b) A reduction or a cancellation requires detailed and full financial disclosure, under oath (usually in the form of an affidavit) that at the time the payments were to be made: a. the change was significant and long lasting and b. the change was real and not one of choice and c. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful. d. Responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family. e. Delay in enforcement is generally not a legal basis to cancel or reduce child support arrears. f. Judges will not cancel arrears because the other party gets a lot of money at once. Otherwise, people would be encouraged to not pay maintenance and rewarded for not paying maintenance. g. Judges will not cancel arrears because the children were looked after in spite of the non-payment. h. i. j. k. l. Nor will judges cancel arrears because the children no longer need the money. The children should be compensated for what they missed. An agreement between parents that the maintenance for the children does not have to be paid will not be considered. Lack of access between a parent and child is not a legal reason to reduce or cancel arrears. Judges will not reduce or cancel arrears because other money has been spent to buy things for the children. The fact that a person did not have legal advice when the order was made or during the time when the arrears added up, is not, by itself, a reason to reduce or cancel arrears. Federal Child Support Guidelines regulations under the divorce act * only for married parents!! Only to be used in Supreme Court (s 192(2) FLA)! Objectives a) Establish a fair standard of support for children that ensures they continue to benefit from the financial means of both spouses after separation b) To reduce conflict and tension between spouses by making the calculation of child support orders more objective c) To improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement d) To ensure consistent treatment of spouses and children who are in similar circumstances Applicability - All DA cases 15.1(3) DA - All FLA cases in BC! (not all provinces) 150(1) FLA Steps The Federal Guidelines include various rules to help you calculate child support. In this guide, these rules have been divided into eight steps to make it easier for you to apply them. The eight steps are: STEP 1: Determine which guidelines apply STEP 2: Determine the number of children requiring support STEP 3: Determine the parenting arrangement STEP 4: Find the right table STEP 5: Calculate annual income STEP 6: Find the table amount STEP 7: Determine if there are special or extraordinary expenses STEP 8: Determine if there is undue hardship Jurisdiction Provincial – unmarried, or married and separated (not applied for a divorce) Federal – married and applied for divorce, or divorced Exceptions to Amounts Listed in Child Support Guidelines: S 5 Payor stepparent (not biological or adoptive parent) S 3(2) child over 19 S 4 income over $150,000 or below $12,000 S 8 split custody – each spouse has sole custody of one or more child S 9 Shared custody - parenting the child(ren) within a 40-60% of the time rule S 10 undue hardship – if payor cannot pay the table amount – circumstances listed in the s 10 FLA exceptions: 150(4) agreement or order re rfiancial duties or division of property 150(4)(b) if it would be inequitable to apply to CSG in consideration of an agreement or order What table do you use? S 3(3)(a) If payor is in Canada, use the province the payor lives in S 3(3)(b) If payor is outside Canada, use the province the other parent lives in Calculating Income Goal to come as possible to actual amount available to payor to use towards child support 15(1) use total income used for tax purposes 17(1) if income is fluctuating use a pattern of income over 3 year period to average / find pattern 19(1) imputing income to the payor if they are a) intentionally under-employed b) purposefully failing to earn income or diverting income for the purpose of not paying support You could also just agree on what income level is STEPS a) Identify the right table (payor’s province) b) Identify the right number of children c) Identify if there are any exceptions (split or shared custody) d) Go into long form e) Calculate the amount by $1,000 (difference of income) f) Calculate the exact amount to determine % to determine mount applicable g) Lower amount h) Table amount i) Calculatee what you are adding based on annual income x % found in long table YES EXCEPTION j) Calculate the amount owed by both the PAYOR and PAYEE k) Payable amount is the difference between the amounts NO EXCEPTION a) Amount is based on payor’s income, regardless of payee’s income