Overview of Child Support
Child support is the payment of money from one person 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 (if you are or were married) either Spouse can ask the other Spouse to pay Child Support for any Child of the Marriage (Divorce Act 15.1(1)).
Definition — Spouse
A spouse is someone you are/were married to (Divorce Act s. 2(1)).
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. (Divorce Act 2(1)).
“Otherwise unable” can include going to school. There are a list of factors used in the case 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”. (FLA 49(1)).
Definition — Parent
Lots of people can be considered a “parent” under the Family Law Act, including
- Birth parents
- People 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
- A person standing in the place of a parent (FLA section 47)
- Someone who is married or in a long term, committed relationship with a parent of the child, or
- Someone who 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. They usually focus on what the child thinks of the person since the right to Child Support is for the child’s benefit. The Court will ask questions to help them decide if the child sees 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, food, toys, school fees, or
- Indirectly, paying rent to the child’s parent, 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 the Court does math to figure out how much should be paid. For example, if parents share custody of one child and Mom makes $30,000 a year and Dad makes $40,000 a year. Mom would have to pay $257 to Dad, and Dad would have to pay $321 to Mom. At the end of the day Dad is paying $64 to Mom so that is what the Child Support Order would be.
The Court rarely awards something different than what the Guidelines say. Most of the time people fight about how much their income is, how much extra should be paid for special activities (called section 7 expenses), whether or not the child is a “Child of the Marriage” or a “Child”, and whether or not someone is a “Parent” or is in “Place of a Parent”.
What is MEP
The Maintenance Enforcement Program (MEP) is a government agency that collects Child Support and Spousal Support according to the Order awarded by the Court. They also track when a payment is missed and are allowed to enforce the Order by taking money from your work before you get paid and in extreme cases taking your property.
Sometimes people have bad experiences with MEP, but MEP is useful most of the time. For people who get Child Support it makes sure that they get their money on time and can continue caring for the child. It also saves them from contacting their ex to ask them for money.
For people who have to pay Child Support MEP offers a point of contact and someone to help you figure out how to pay. It’s also easier for some people to have it come out of the bank automatically every month instead of having to remember to write a cheque or send an e-transfer. MEP has programs for automatically recalculating your child support based on your income tax which allows the Child Support to be accurate and proportionate to your income. Most of the time MEP is sympathetic to situations like job changes or emergencies that might lead to late payments. They have recently assigned case officers to each file so whenever you contact them it will always be the same person. MEP only goes to extremes like taking your car if you have missed many payments in a row and not called them to offer an explanation.
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 and they are not usually involved if you go to Court. The only time they might need to be at Court with you is if you or your partner receive government assistance and are arranging for arrears (missed payments) to be forgiven. MEP will just want to make sure that the government is paid back for any social assistance they have given out.