Child support

Parents have a duty under the law to support their children, even if one parent doesn't see or take care of the children. The money one parent pays to the other parent to help provide for the daily needs of the children is called child support or maintenance.

Child support laws are based on the idea that a child should benefit from both parents' ability to support them in the same way they would if the parents lived together. Child support, although not paid directly to the child, is the legal right of the child.

The parent who the child lives with most of the time is entitled to child support from the other parent. If a child spends equal (or almost equal) time with both parents, the parent with the higher income will usually have to pay child support.

If one parent falls behind on or fails to pay child support payments, the other parent can't prevent them from seeing the child as allowed by any court order or agreement. A parent also can't bargain away child support. The court usually won't accept an agreement saying that the other parent doesn't have to pay child support.


What are the child support guidelines and how do they work?

Child support orders made in British Columbia are based on the Federal Child Support Guidelines. These guidelines contain clear rules that courts use to set child support as well as tables that list the amount of child support the payor has to pay. These amounts are based on how much they earn and how many children the payor must support. Each province has its own table; use the one for the province where the payor lives.

To figure out how much child support the payor will be paying under the guidelines:

  1. Use the Child Support Table Lookup tool (effective from December 31, 2011) to calculate the correct amount of child support.

OR

  1. From the table of contents page for the Federal Child Support Guidelines, under "Schedule I - Federal Child Support Tables," choose the province where the payor lives (the tables for British Columbia).
  2. Choose the table that applies to you, based on the number of children you're seeking or paying support for.
  3. Find the payor's gross annual income in the "Income" column. Income is listed as a range, e.g., "24000 – 24999."
  4. Look to the right of these figures ("Basic Amount") for the basic amount the payor has to pay. If the payor's income is higher than the lowest figure listed in the range (e.g., the payor's income is $24,600 and the range is listed as 24000 – 24999), multiply the additional amount ($600) by the percentage under "Plus (%)," and add this to the basic amount. See Schedule 1 for an example of how to work this out.

When the table amounts might not apply

Judges (or masters) will consider making orders for amounts that are less than those shown in the tables if:

  • the court agrees with the payor's claim for undue hardship (see below),
  • the child is 19 or over (and not in school full-time),
  • the payor is a step-parent,
  • one parent's income is over $150,000, or
  • one parent makes a claim for special or extraordinary expenses (see below).

Also, children under 19 may no longer be eligible for child support if they get married or voluntarily leave their parents' home for reasons other than family violence or intolerable living conditions.

For how long must a parent pay child support?

Parents' child support obligations are set out in both the Divorce Act and the Family Law Act. Each of these acts sets them out slightly differently, but basically, children are entitled to be supported by their parents if:

  • they're under 19; or
  • they're 19 or over, but can't take care of themselves because of of illness, disability, or another reason.

For more information, see the fact sheet When does child support end?

Can I reach an agreement without going to court?

Tip: For help with drafting a legally binding separation agreement, see our self-help guide How to write your own separation agreement.

Many couples come to an agreement about child support without going to court. Agreements that are filed with the court can be enforced — they have the same effect as a court order. They can also be set aside (cancelled) if the situation changes.

If you're trying to negotiate an agreement, start by looking at the child support guidelines (see What are the child support guidelines and how do they work? above). You can get legal help from a lawyer, family justice counsellor, or Justice Access Centre about what is fair (see Who can help?)

If you want help negotiating an agreement, see our fact sheets Making an agreement after you separate and Who can help you reach an agreement?

Applying for child support

If you and the other party can't come to an agreement, one of you can apply to the court for an order for child support. Court applications can be expensive and time-consuming, so see a lawyer for advice about whether what you're expecting is reasonable. To find out more about orders, see our fact sheet All about court orders. (This fact sheet contains links to our step-by-step guides on How to get a final family order and How to get an interim family order.)

What is "undue hardship"?

The person paying or the person receiving child support can ask for a different amount than what's listed in the guidelines tables if that amount would cause them undue hardship. The payor may experience undue hardship trying to pay the child support, or the recipient may experience undue hardship trying to support the child or children with the amount given. The courts have said that "undue" means excessive, exceptional, or disproportionate. This can be a hard thing to prove.

The person making the claim must report all income coming into their household, including any income or contribution from a new spouse or partner. This includes any contribution to household expenses, and any rental income, dividend income, investment income, and business income. If the payor makes this claim, the recipient must also provide information about their income.

The types of situations that might result in undue hardship include:

  • having an unusual or excessive amount of debt,
  • having to make other support payments to children of another family (for example, from a previous marriage),
  • having to support a disabled or ill person, and
  • having to spend a lot of money to visit the child (for example, airfare to another city).

The payor may show undue hardship if:

  • they are in a lot of debt,
  • they have to make other support payments to children of another family (for example, from a previous marriage),
  • they have to support a disabled or ill person, and
  • it costs a lot to visit the child (for example, airfare to another city).

In any claim for hardship, the court also compares the standards of living of the two households. The court will refuse a claim of undue hardship if it would result in the payor's household having a higher standard of living than the recipient's.

What are special and extraordinary expenses?

The child support guidelines say that each parent is required to contribute to the special or extraordinary expenses of raising the children (examples are listed below). These are expenses that go above and beyond what is covered by the child support itself. In making decisions about what to spend on these special expenses, consider:

  • whether the expense is needed to address your child's best interests, and
  • how reasonable the expense is, given your income and that of the other party.

The amount that must be contributed is based on the proportionate incomes of the parents. For example, if the payor earns twice as much as the recipient, the payor will be required to contribute twice as much.

Either parent can claim special or extraordinary expenses. For example, if you're the payor and you're paying for private school for your child who isn't living with you, you may still get the other parent to contribute.

Generally considered special or extraordinary expenses

  • Child care expenses while the recipient works or goes to school
  • The portion of medical and dental insurance premiums that provides coverage for the child
  • Health-related expenses that exceed insurance reimbursement by at least $100 per year, including orthodontic treatments, counselling, physiotherapy, occupational therapy, speech therapy, hearing therapy, prescription drugs, hearing aids, glasses, and contact lenses
  • Expenses for post-secondary education
  • Tutoring
  • Private school (if the child was attending private school before the separation and the parents can afford the expense)
  • Payments into a scholarship fund (depending on the means of the parents)
  • Expenses for activities in which the child excels and is shown to be particularly gifted (for example, expenses for a child who is a gifted figure skater, but not expenses for general skating lessons)

NOT generally considered special or extraordinary expenses

  • Children's share of rent, food, or laundry costs
  • Children's ordinary recreation costs
  • Children's clothes (with the possible exception of uniforms for private school)
  • Children's ordinary schooling costs (including field trips and lunches), unless for post-secondary education
  • Children's allowance or pocket money
  • Children's transportation
  • Costs of visiting the children (although this may be part of an undue hardship claim)
  • Babysitting expenses

Important: The law changes frequently. It's a good idea to talk to a lawyer about these categories if you'd like to claim special or extraordinary expenses.

What is the 40 percent principle?

When a child lives with a payor 40 percent of the time or more, that parent can argue that they don't have to pay as much support as the guidelines say. The judge or master may agree and order lower support amounts.

When a payor makes this request, the judge or master will consider how often the children are with the payor, as well as the gross annual income of each parent and extra costs of sharing parenting time. The court will also consider other factors, such as the circumstances of both parents and of the child being supported.

To make such a claim, it's useful to have documents showing that the total amount of time you have physical care and control of the children is 40 percent or more of the year. This includes the time that you're responsible for the children, even if they're not physically with you. For example, if one parent has the children during the school week, the children are considered to be under that parent's care and control even when they're physically at school. The parent who has them over the weekend may end up spending about the same number of hours with the children, but the parent who has them during the week is considered to have them the majority of the time.

If you want to use the 40 percent principle to try to lower child support, get legal advice. This principle entitles you to ask to reduce the support you pay, but it doesn't guarantee that the court will grant your request. This is a complex issue and you will need legal help.

When do we need to provide financial information to each other and to the court?

Agreements about child support sometimes happen informally, with one parent producing an income tax return to prove income and nothing more. Sometimes it is more formal — an agreement can be made with the help of a lawyer and/or mediator. No matter how you make your agreement, it is important that you and your spouse disclose (share) all the important information you need to reach a fair outcome. In fact, the Family Law Act says you must give your spouse "full and true information."

If you go to court, both the Supreme and the Provincial Courts have rules that require parents to disclose financial information. All payors (and recipients in some cases) must provide proof of their income by filing a financial statement at the court registry.

Rules about sharing financial information ensure that both parties and the courts will make decisions about child support based on the facts about each parent's income. It isn't appropriate to agree to child support based on what one of the parents says.

The Supreme Court Family Rules (Rule 5-1), the Provincial Court (Family) Rules (Rule 4), and the Federal Child Support Guidelines set out when a payor and a recipient need to provide financial information to each other.

For more details about when and how to provide financial information, see our self-help guide How to deal with a Supreme Court Financial Statement (Form F8) or How to deal with a Provincial Court Financial Statement (Form 4).

If the other parent does not share the required information with you, you can ask the court to order them to do so. If the other parent doesn't follow orders to provide information, the court can "impute" income to that person.

How do income tax rules affect child support payments?

Recipients whose child support orders were made before May 1, 1997, have to declare the child support they receive as income for tax purposes. Recipients whose child support orders were made on or after May 1, 1997, don't have to declare the child support they receive as income for tax purposes.

Payors whose child support order was made before May 1, 1997, can deduct child support they pay from their income for tax purposes. Those payors whose child support orders were made on or after May 1, 1997, can't deduct the child support they pay from their income for tax purposes.

For more information about income tax rules, see the Tax Matters Toolkit, a two-part online resource from the Canadian Bar Association that explains the rules that apply when you separate or divorce, including child support rules.

Cancelling or reducing arrears

Arrears are past support payments that haven't been paid. While the law does allow a judge or master to reduce or cancel arrears, it's difficult to do unless there's a very good reason for the change.

The Family Law Act allows a judge to cancel or reduce arrears if it would be grossly unfair not to do so.

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