Child Support 101
Child support is one of the main issues for parents before, during, and after separation. If you have children the payment of child support, including the amount paid, the timing of when it is paid, and the collection of payments can all become sources of conflict. Here we will review who is required to pay child support. Keep an eye out for subsequent discussions about why parents need to pay support, what child support is meant to pay for, how to determine the amount of support paid, what are “special expenses” and when the obligation to pay child support ends.
Who pays Child Support
Every person who has a legal responsibility for a child also has a financial obligation to support the child. This obligation is set out in both the federal Divorce Act and in the provincial Family Law Act. However, in this day and age of assisted reproduction, blended, and multi-generational families, figuring out who needs to pay support can sometimes be challenging.
The primary financial responsibility for a child falls to the parents of the child. The person who cares for the child the most is the “primary” parent, and must house, feed and clothe the child. The primary parent is entitled to a payment from the other parent to help pay for the costs of raising the child. If parents each have at least 40% of a child’s parenting the child is in “shared care”. Shared care parents each nominally pay child support to one another, and if there is a difference in the amounts, the lower income parent is entitled to the difference.
Under the Divorce Act, spouses who are married and have children have a financial responsibility for any “child of the marriage”. Spouses can apply for child support from their spouse or former spouse for any child of the marriage at any time after the parties have been married. Unfortunately the Divorce Act has significant limitations, as it only applies to people who are married. Additionally, the parenting arrangements which are available under the Divorce Act are limited and make it difficult to create a comprehensive plan for both parenting and child support. And finally, concepts like assisted reproduction and surrogacy are not contemplated by the Divorce Act.
As a result of the limitations of the Divorce Act, many people must proceed under the provisions of the Family Law Act. The Family Law Act applies to all people who reside in BC who have children, married or not. It has a specific definition for “parent” and applies whether people are married, common-law, or simply had a child together. The Family Law Act allows a parent to pursue child support from the other parent at any time while the child remains dependent on his or her parents. Part 3 of the Family Law Act sets out the criteria the court uses to determine parentage for a child. The court can require DNA testing of the parties and the child to confirm whether they are or are not be the parents.
People who are not married or same sex partners may be automatically considered to a “parent” under the Family Law Act by the court if they meet certain conditions. Some examples include the mother listing a person as a parent on the child’s birth registration, parties living together and caring for the child together after the birth, or if you have guardianship of a child under the Family Law Act. As the Family Law Act came into force in 2013 it includes provisions for determining parentage for a child conceived by assisted reproduction technology, including anonymous donors, and surrogacy. Under the Family Law Act a person is not necessarily a parent if they only provided genetic material to conceive the child.
A person who adopts a child has the same financial obligations for the adopted child under the Family Law Act as for a biological child. The adoption ends the financial obligation of the former parent(s) and creates a new financial obligation for the adoptive parent(s).
A guardian may not be a parent of a child, but has legal authority to makes decisions for a child because a parent becomes incapable of making good choices for his or her child. If a child comes to live with a non-parent guardian, the guardian has a significant financial obligation in housing, feeding, and clothing the child. The guardian is entitled to apply to receive child support from the parents of the child to help the non-parent guardian meet these financial burdens. There are no time limits for a guardian to apply for financial support for a child.
However, if the child lives primarily with the parents, a person who has guardianship of a child may also have an obligation to provide the child with financial support. This could include a grandparent, aunt, uncle, or even a close friend who is given guardianship under the Family Law Act . The financial obligation for a guardian is a secondary obligation and typically requires the parents to first pay support and a guardian to do so only if the parents cannot.
Step-parents may also have a financial obligation to a child under the Divorce Act. The Divorce Act contemplates that a step-parent, who has “stood in the place of a parent” or is “in loco parentis”, can also have a financial obligation to support a child. The court typically will need to review whether a step-parent has “stood in the place of a parent” under the Divorce Act, as there are certain factors set out in case law which helps the court to decide if a step-parent should be financially responsible to a step-child. Case law has required the step-parent to have a significant parental relationship with the child, which includes both financial contributions, parenting responsibilities, and an ongoing parent/child relationship.
Step-parents are also considered under the Family Law Act. Unlike the Divorce Act, the financial obligation of a step-parent under the Family Law Act is a secondary obligation to a biological parent paying child support. Under the Family Law Act, the biological parent must demonstrate an attempt to get support from the other biological parent or any guardians first. If the other parents or guardians are unable to pay support, the recipient parent then must prove the step-parent financially supported the child for at least one year, and the application for the step-parent to pay support has been made within one year of the recipient and step-parent separating. Even if the above criteria and time limits are met, the parent applying for support will also need to establish that the step-parent has had a relationship with the child that warrants the step-parent paying ongoing support; step-parent child support could be significantly limited in terms of both amount and duration if the step-parent and child do not have an ongoing relationship. The courts have a greater level of discretion to determine whether a step-parent should pay support, the amount of support, and the duration of support as compared to parents and guardians.
If you have questions about whether you may need to pay support for a child, Adele Letwin and Chelsea Harris are able to help you with your specific situation.
The information contained in this article is for general purposes. It does not constitute legal advice. It is not to be construed as a warranty, guarantee and should not be relied on. Do not act on the information in this website without consulting your lawyer or a lawyer who can provide legal instructions relevant to the full scope of your matter.
January 31, 2020