Overview of Child Support
Today we will look at child support and the basics of when child support might be required, how child support is determined, and what the Maintenance Enforcement Program (MEP) has to do with it all.
Child support is the payment of money from one parent or guardian to another to help with the financial costs of caring for a child. The main consideration the Court will take into account is “What is in the best interests of the child”. The Court will also not let parents give away their child support since it is the child’s right and not the parents.
Who might have to pay child support?
Under the Divorce Act, parties who are or were married can apply for child support from the other Spouse for any child of the marriage.
Definition — Spouse
A spouse is someone you are or were married to.
You may also be responsible for a child of the marriage if you stand in place of a parent” (DA 2(2)). The Divorce Act does not provide any list of factors or definition of “in place of a parent”. However, the Family Law Act does.
Definition — Child of the Marriage
A “child of the marriage” is a child whose parents were married and is either younger than 18 and still lives with their parents, or is over 18 but still lives with their parents because they are sick, disabled, or otherwise unable to move out and live on their own.
“Otherwise unable” can include going to school. There are a list of factors considered in Farden v Farden (1993 BCSC) to help the Court decide whether or not someone should be considered a “child of the marriage”. The court will ask questions to determine whether the child is independent or not including:
- Are they a student? Do they go to school full-time or part-time?
- Does the child have student loans? If not have they tried to apply for them?
- What does the child want to do with their life? Are they going to school to make that dream come true or are they wasting their time?
- Does the child have a part-time job? Could they get one?
- How old is the child?
- How does the child do in school? Are they doing well in all of their courses?
- What are the parents plans for the child? Specifically, what did they want for the child when they were together?
- Does the child still have a relationship with the parent paying support? If not who ended the relationship?
Family Law Act
Under the Family Law Act “every parent has an obligation to provide support for his or her child”.
Definition — Parent
Various individuals can be considered a “parent” under the Family Law Act, including:
- the birth parents;
- parties involved with assisted reproduction (see section 8.1 of the Family Law Act);
- anyone specified as a parent through an Adoption Order or under the Child, Youth and Family Enhancement Act; or a
- person standing in the place of a parent, which generally refers to anyone who:
- is married or in a long term and committed relationship with a parent of the child, or
- has acted as a parent to the child.
To decide whether someone has acted like a parent the Court will look at the relationship between the person and the child. The focus is generally on how the child perceives the individual since the right to child support is the child’s . The Court will ask questions to help them decide if the child views the person as a parent. These questions might include:
- How old is the child?
- How long has the child known the person?
- What kind of relationship do the person and the child have, including:
- Does the child see the person as a parent?
- Does the person help with the child’s education, discipline, recreational activities and general caring for the child?
- Has the person tried to continue the relationship with the child after terminating the relationship with the parent?
- Did the person ever think about:
- Applying to become the child’s guardian
- Adopting the child, or
- Changing their last name?
- Did the person buy anything for the child, either:
- Directly, such as food, toys, school fees; or
- Indirectly, by paying rent to the child’s parent or buying groceries for the family?
- What is the child’s relationship with its other parents?
- Is there anything else the Court should look at to make this decision?
Definition — Child
A “child” according to the Family Law Act is someone who is under 18 years old, or who is between 18 and 22 and still lives with their parents because they are going to school full-time.
If you live on your own or with a partner, even if you are younger than 18, you are not a child, and you are not a child if you are married or have an “adult interdependent partner” (this is when you have been living with a partner for 2 years, have a child with someone you are living with, or sign an agreement to be adult interdependent partners).
How is Child Support Determined?
The Federal Government has made tables for each province that say how much Child Support should be paid based on the number of children and the income of the parents. For example, an Albertan parent paying child support for one child with an income of $30,000 a year would pay $257 a month in child support.
If the parents share custody of the child 50/50, then generally both parties are obligated to pay child support . The child support payable by the parents will then often be offset, with the higher earning party by the lower income earning party a reduced amount. For example, consider a scenario where the parents share custody, and Mom earns $30,000 a year while Dad earns $40,000 a year. Mom would have to pay $257 to Dad, and Dad would have to pay $321 to Mom. These amounts would then be offset, and Dad would pay $64 to Mom.
The Court rarely Orders an amount which diverges from the Guidelines. Generally disputes relate to how an individual's income is calculated, how much section 7 expenses should be payable, whether a child has the right to support in a particular instance, or whether someone is considered a parent with a corresponding obligation to pay support.
What is MEP
The Maintenance Enforcement Program (MEP) is a government agency that collects child support and spousal support according to an Order of the Court. MEP also tracks when a payment is missed and are allowed to enforce the Order by garnishing a payor's wages or confiscating and selling property in extreme cases.
Sometimes people have bad experiences with MEP, but generally speaking, MEP can be a useful resource. For people who receive child support, MEP ensures they receive payment on time so that the recipient can continue caring for the child. It also minimizes the need for contact between the recipient and their ex-partner.
For people who must pay child support, MEP offers a point of contact and assistance in calculating the correct amount owing. With MEP, a payor can have payments automatically drawn from their bank account, thereby reducing the likelihood of missed payments which may arise when the payor relies on cheques or e-transfers. Additionally, MEP is often sympathetic to situations like job changes or emergencies giving rise to late payments and can work with payors who are experiencing cash flow problems. MEP has recently assigned case officers to each file so whenever a payor contacts them, they will always have same caseworker.
MEP is not automatically involved in every file, either the payor or the recipient can register for the program. New Orders or changes can be filed with MEP but they are not usually involved in proceedings if parties go to Court. The only time MEP may be involved is when a party is receiving government assistance and wants to arrange for arrears (missed payments) to be forgiven.