CHILD SUPPORT

Child support is the money paid for the reasonable maintenance and support of a child of a marriage.  Child support is intended to distribute the costs of raising a child between the parents.  In addition to biological parents, depending on the family circumstance, step-parents and anybody who may stand in the place of parents may also be required to pay child support.

To be eligible for child support, the child must be under the age of 19, or over the age of 19 but unable to withdraw from the charge of the parents dues to illness, disability, or other cause, such as attending a post secondary institution.

Child support is no longer a tax deduction to the payor or taxable in the hands of the recipient.  However, a lawyer’s bill for obtaining and enforcing a child support order is tax deductible.   The cost of defending a claim for child support is not tax deductible.

The Guidelines

In most circumstances, child support is determined by the federal Child Support Guidelines (the “Guidelines”).  The Guidelines were adopted in British Columbia in 1998. 

The Guidelines consist of a set of rules and tables for calculating the amount of child support a paying parent should contribute to his or her children.  They were designed to make child support fair, predictable and consistent for children.  The Guidelines provide a table of child support payable depending on the payor's income and the number of children eligible for support.  A parent’s income is often determined by their income tax returns.

In addition to the base amount of child support, section 7 extraordinary expenses such as child care, educational costs, health/dental costs or extraordinary extra curricular activities will also be used to determine the amount of child support payable.  The special expenses are meant to be shared by the parents depending on the parent’s proportionate incomes.  The amount shared is the “net” cost of expense after government subsidies or tax deductions are taken into account.  The total amount of child support is determined by adding the base amount to the paying parent’s portion of the special expenses.

The court retains discretion to depart from the amount set by the Guidelines in a few circumstances, such as where the paying parent’s annual income exceeds $150,000 or the Guidelines amount would cause “undue hardship”.  When a court is asked to consider the question of whether the Guidelines amount is causing undue hardship, the courts look at the standard of living of the household rather than the parent alone.  This may be applicable where a spouse receiving support remarries a high earner and the payor spouse has the child for a large percentage of the time.

The courts only depart from the Guidelines amount where the table amount is “unsuitable” and there is “clear and compelling evidence” to rebut the presumption that the table amount is appropriate.

Split/Shared Custody Arrangements

Where parents have “split custody”, meaning that each parent has custody of one or more of their common children, the amount paid is the difference between the amounts that each parent would pay if a child support order was sought against each of the parents.

“Shared custody”, means that the paying parent has the child for not less than 40% of the time over the course of the year.  Calculating this time can often be a difficult process.  Generally the courts will attempt to average the amount of time the children spend with each parent.  It is open to one parent to argue that as he or she has the child more than 40% of the time, therefore the Guidelines amount is inappropriate.  The courts will look at each case separately to determine the amount of reduction in payable child support in the case of shared custody and will consider such factors as the increased costs to the paying parent resulting from the sharing arrangement. 

Variation of child support

If a party seeks to vary a child support order the court must be satisfied that there has been a sufficient change in circumstances.  Commonly, the change in circumstances is an increase or decrease in the paying parent’s income.  When a party is seeking to vary  the child support amount the courts expect to see financial statements documenting assets/liabilities and income/expenses.

A person seeking a retroactive child support order is seeking an increase in child support from the date that the payor's income increased.  Recent court decisions have held that payors are to act in upmost good faith and report information even where the recipient does not request information.