Understanding Child Support in British Columbia

May 1

There are many misunderstandings about child support. Whether you are separated or divorced from your child’s parent, considering separation or divorce, or even preparing to have children with your current partner, it’s important to understand these continuing financial obligations.

Child Support Obligations, Generally

Each parent and guardian of a child has a duty to provide support for the child, meaning that a court may order that parent or guardian to make child support payments. A child means either:

1. A person under the age of majority; or

2. A person over the age of majority who, by reason of illness or disability, is unable to withdraw from their parents’ or guardians’ charge and obtain the necessities of life.

However, a child does not include a person who is themselves a spouse, meaning they are married or in a common law relationship. There is also no obligation to provide support where the child has voluntarily withdrawn from their parents’ or guardians’ charge, except if the child withdrew because of family violence or because the child’s circumstances were objectively intolerable.

Importantly, there is no basis for taking the quality of a child-parent relationship into account when determining child support obligations. If a child’s conduct is ever relevant, it should only be in truly egregious cases of misconduct by a child against a parent, which is extremely rare.

Children Over the Age of Majority

A person over the age of majority who, by reason of illness or disability, is unable to provide for themselves, is still considered to be a “child” for the purposes of determining child support obligations.

The party seeking child support for a child over the age of majority must prove to the court that the adult child is in fact a “child”, meaning that they are, by reason of illness or disability, unable to withdraw from their parents’ charge and obtain the necessities of life. Inability to withdraw from parents’ “charge” means the child has no alternative but to remain in the parents’ care or custody, which may include financial care. The ability of a child over the age of majority to obtain the necessities of life is a contextual inquiry, with two important factors that a court will consider: (1) the child’s employability; and (2) the extent of the child’s illness or disability.

Post-Secondary Education

The courts have held that pursuit of post-secondary education qualifies as another reason for which a child over 19 is unable to withdraw from their parents’ charge, meaning that parents and guardians may still have support obligations for children over the age of majority who are actively pursuing post-secondary education. The so-called “Farden factors” are the various factors considered by a court in determining whether education will justify continuing support obligations past the age of majority:

· Whether the child has in fact enrolled in a course of studies and whether the course is full-time or part-time;

· Whether the child has applied for or is eligible for student loans or other financial assistance;

· The child’s career plans, including whether the educational pursuit is reasonable and appropriate in light of such plans;

· The ability of child to contribute financially through part-time employment;

· The age of the child;

· The child’s past academic performance, including whether the child has demonstrated success in their chosen course;

· The plans that a couple made for the education of their children, particularly if such plans made during cohabitation or marriage; and

· When disability is not at issue, whether the child has unilaterally terminated relationship from the parent from whom support is sought.

Stepparents and Non-Parent Guardians

Obligations of child support may extend to other parties who are not the child’s biological or legal parent.

Where a child has a legal guardian who is not their parent, that guardian also has a duty to support the child, but the non-parent guardian’s duty to support is considered to be secondary to that of the child’s parents.

A common area of contention is the obligation of stepparents to support the children of their spouse or former spouse. Under the Family Law Act, once a stepparent has contributed to the support of the child for at least one year, commonly in the context of their relationship with the child’s parent, an obligation to contribute to support of the child will continue so long as a proceeding, or application for child support, is brought one year after the date the stepparent last contributed to the support. For clarity, if a stepparent was financially supporting your child and the relationship breaks down, you would have to begin a proceeding, such as by making an application for child support, within one year after the stepparent ceased support of the child in order for the stepparent to have a continuing obligation of support.

The courts have held that a stepparent can be obligated to pay child support if they “stand in place of a parent” in their relationship with the child and in the family unit. In determining whether a stepparent stands in place of a parent, the court will consider factors such as the best interests of the child, the views of the child, the nature of the relationship between the stepparent and the child, and whether the stepparent was a part of “forming a new family” with the child and their spouse. A stepparent who stands in place of a parent cannot unilaterally withdraw from this role; once they have undertaken this role, they are considered to have the same rights and obligations of a biological parent.

Calculating the Amount of Child Support

Once a person is determined to be responsible for providing support to a child, the question turns to how much support they are required to provide. The quantum of child support is determined by following the Federal Child Support Guidelines. Note that the term “Guideline” is a misnomer. The legislation provides a presumptive amount of how much one should pay to the primary caregiver of the child, with some exceptions, such as where the payor has an income over $150,000 or is not a biological parent of the child.

Section 7 of the Federal Child Support Guidelines enables the court to account for, in making a child support order, certain “special or extraordinary expenses”. These expenses are those which go beyond between ordinary expenses. Ordinary expenses, including many educational, extracurricular, and recreational costs, are intended to be covered by the presumptive amount provided for under the Guidelines. Special or extraordinary expenses, by contrast, may include:

7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

When making a child support order, the court may order coverage of all or any portion of such expenses, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and the child and to the family’s spending pattern prior to separation.

Other Practical Implications of Child Support Payments

Child support is not taxable, meaning it is not taxed as any extra income for the primary caregiver recipient nor is it deductible for the paying spouse. Typically, the paying party has no control over how the child support funds will be spent by the primary caregiver, but the court may intervene if the money is being used extremely inappropriately. While commonly ordered from a forward-looking perspective, child support can also be ordered retroactively.

Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.

Amy Kaustinen

Amy is a law student in her third year of the JD program at the University of British Columbia Peter A. Allard School of Law. After graduating in May 2024, she looks forward to completing a judicial clerkship at the British Columbia Supreme Court.

Prior to law school, Amy obtained her Bachelor of Commerce (Honours) from Queen’s University, where she studied and gained work experience in corporate social responsibility, non-profit management, finance, and accounting.

She was drawn to law school for the intellectual challenge along with her deeply held desire to help others and make a difference in the world around her. As a former student clinician and Director of Technology and Publications at the Law Students’ Legal Advice Program, Amy learned to deliver empathetic and efficient client service to low-income folks unable to afford legal assistance. In addition to writing for Illuma Law, helping to provide accessible legal information to the public, Amy is currently volunteering at Battered Women’s Support Services, where she helps with client intake, referral services, and preliminary legal research and writing for women in Vancouver facing gendered violence.