Child Support
Getting the guidelines right — and the special expenses too.
The guiding principle of Canada's child support law is that children should continue to benefit from the financial means of both parents, just as they would if the parents were still together.
The Obligation to Pay
The obligation to pay child support for married couples comes from section 15.1 of the Divorce Act, and for unmarried parents and guardians from section 147 of the Family Law Act. Once it is determined that there is an obligation to pay child support, the amount payable is determined by section 150 of the Family Law Act with reference to the Federal Child Support Guidelines.
Objectives of the Guidelines
The objectives set out in section 1 of the Federal Child Support Guidelines are: (a) to 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 guiding courts and spouses in setting support levels and encouraging settlement; and (d) to ensure consistent treatment of spouses and children in similar circumstances.
Calculating the Amount
Child support payments are made by the parent or guardian (the 'payor') to the parent or guardian who bears the primary responsibility for the child's expenses (the 'recipient'). Step-parents may also have a duty to provide child support if they contributed to the support of the child for at least one year, and an application to the court is made within one year after the step-parent last contributed. The amount payable is determined by the payor's income and the table in the Federal Child Support Guidelines matching income to number of children.
Child Support Agreements
Parents may make agreements between each other regarding the amount of child support to be paid, but those agreements have strict requirements and are not easily upheld. Agreements are permitted by section 15.1(5) of the Divorce Act and section 148 of the Family Law Act. The sections require that the agreements are made after separation (or when the parties are about to separate) and that they adequately provide for the child — otherwise a court will set the agreement aside and refer to the Federal Child Support Guidelines.
Child Support Is the Child's Right
Child support cannot be bartered away by one or both parents. The court has jurisdiction to determine what is in the child's best interests, and can order child support different from that set out in the parents' agreement where the contractual amount is inadequate. See Hunble v. MacKay, 2012 BCSC 1285 (CanLII) at para. 20.