The law says that parents or guardians have to look after their children financially, even if one parent or guardian doesn't see or take care of the children.
When people separate, this usually means that one person has to give the other person money to help support the children. This money is called child support or maintenance. It's usually paid to the parent or guardian the children live with for more of their time. The person who pays is called the payor. The person who gets the money is called the recipient.
Children have a legal right to child support. The law says the parent or guardian the children live with most of the time is entitled to get child support from the other parent or guardian. If the children spend equal (or almost equal) time with both parents or guardians, the person with the higher income usually has to pay child support.
Paying (or not paying) child support doesn't affect a person's parenting time or contact with their children. If the payor falls behind or stops paying, the other person can't stop them from seeing the children because of that.
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 are a set of rules that the courts and couples who are separating use to work out how much child support a payor has to pay.
The amount is based on:
- how much the payor earns,
- how many children they have to support, and
- where they live.
You'll need to know all these things if you want to work out how much the payor will have to pay.
The easiest way to work out how much child support the payor will have to pay is to use one of the Child Support Table Lookup tools:
- Use the 2011 Child Support Table Look-up to work out child support amounts set before November 22, 2017.
- Use the 2017 Child Support Table Look-up to work out child support amounts set on November 22, 2017, or later.
Each province and territory has its own table.
Cases in Kelowna Provincial Court
If you have a support order made on or after June 1, 2006, in Kelowna Provincial (Family) Court, the Child Support Recalculation Service (CSRS) automatically recalculates the child support amounts every year.
To do this, CSRS applies the child support guidelines to the updated income information.
- helps parents keep their child support amounts up to date without going back to court,
- ensures that recipients get the support the children are entitled to, and
- ensures that payors pay support that's appropriate for their income.
If you have a written agreement (rather than an order), you can opt in to this service if you want to.
CSRS accepts only income tax information as the source for up-to-date income information.
If you're a payor, you have to submit your income tax information as required. If you don't, CSRS will automatically assume that your income has increased by 10 percent.
Only recalculations that result in changes of $5 or more a month will lead to changes in the child support amount to be paid. Special or extraordinary expenses won't be recalculated.
Can the amount of child support be different from what the table says?
Judges (or masters) might make orders for less support than the amount in the tables if:
- the court agrees with the payor's claim that the amount of support would cause them undue hardship,
- the child is 19 or over and not in school full-time,
- the payor is a step-parent,
- the payor's income is over $150,000, or
- one parent makes a claim for special or extraordinary expenses.
A payor might not have to pay support for children who are under 19 if the children:
- get married,
- choose to leave their parents' home and there's no history of family violence or difficult living conditions, or
- don't want a relationship with their parents.
For how long must a parent pay child support?
Each act talks about this 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 illness, disability, or another reason, like they're going to school
Do you have to go to court?
Many people come to an agreement about child support without going to court. They can then file their agreement with the court.
If the agreement is filed with the court, it can be enforced. That means it's treated in the same way as a court order. It can be set aside (cancelled) if things change for either person.
See Write your own separation agreement if you need help writing a legally binding separation agreement.
Applying for child support
If you and the other person can't come to an agreement, one of you can apply to the court for an order for child support.
Court applications can take a lot of time and money, so ask a lawyer if they think what you want is reasonable.
To find out how to get an order, see:
- Get a final family order in Provincial Court if you can't both agree,
- Get an interim family order in Provincial Court if you can't both agree, or
- Get an interim family order in Supreme Court if you can't both agree.
What's "undue hardship"?
The courts have said that "undue hardship" means that the amount of support is excessive, exceptional, or disproportionate and would cause problems for the payor. It can be hard to prove.
The payor or the recipient can ask for a different amount of child support than what's listed in the guidelines tables if that amount would cause them undue hardship. For example:
- the payor might suffer undue hardship because the amount of child support is too high for them, or
- the recipient might suffer undue hardship because the amount of child support isn't enough to pay for everything the children need.
Here are some examples of situations that can cause undue hardship:
- having an unusual or excessive amount of debt
- having to make support payments for children from another family (for example, from a previous marriage)
- having to support a disabled or ill person
- having to spend a lot of money to visit the children (for example, airfare to another city)
The person making the claim has to report all the income coming into their household. They also have to report:
- any money a new spouse or partner pays to help them with household expenses, and
- any money they and their new spouse or partner gets from:
- rental income,
- dividend income,
- investment income, or
- business income
If the payor makes this type of claim, the recipient has to give information about their income as well.
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 mean the payor's household had a higher standard of living than the recipient's.
What are special and extraordinary expenses?
Section 7 of the Child Support Guidelines deals with sharing special and extraordinary expenses. These are costs paid on top of basic child support but they're two different things.
Special expenses include costs like:
- childcare expenses while the recipient works or goes to school
- the portion of medical and dental insurance premiums that provides coverage for the child
- expenses for post-secondary education
- private school
Extraordinary expenses are costs for extracurricular activities (sports or other activities the child does outside of school) that are extraordinary (unusual) in some way. Usually they don't include all the child's activities. For example, if a child excels at and is shown to be particularly gifted in a certain activity, the costs for it would be considered extraordinary expenses (so, expenses for a child who is a gifted figure skater would count, but expenses for general skating lessons wouldn't).
Whether an expense is considered special or extraordinary depends on:
- the amount of the expense,
- the nature and number of the activities,
- the child’s special talents needs, and
- the parents' financial circumstances.
An expense for education or extracurricular activities is extraordinary only if:
- it's more than you can reasonably pay based on your income and the amount of child support you get, or
- it's not more than you can reasonably pay, but it's extraordinary when you take into account:
- your income and the amount of child support you get,
- the nature and number of educational programs and extracurricular activities,
- the overall cost of the educational programs and activities,
- any special needs and talents of the child, and
- any other similar factors that are considered relevant.
The amount that you and the other person have to pay usually depends on how much each of you earns. For example, if you earn twice as much as the other person does, you'll have to pay twice as much for special or extraordinary expenses as they do.
Special and extraordinary expenses are usually shared no matter who's paying for them. For example, the other parent would help pay for the school fees if:
- you're the payor,
- your children don't live with you, and
- you're paying private school fees for your children.
Here's a list of things that usually don't count as 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 (but this may be part of an undue hardship claim)
- babysitting expenses
The law changes often. It's a good idea to talk to a lawyer about the different types of special or extraordinary expenses if you want to claim for them.
If you're sharing parenting, how do you calculate support?
Shared parenting means the children live with each parent at least 40% of the time. If you're doing this, the child support tables don't apply in the same way. But each parent or guardian is expected to contribute to the support of the children based on their incomes.
In these situations, usually support is calculated (worked out) this way:
- Figure out what child support Parent A would pay if Parent B were the primary parent.
- Figure out what Parent B would pay Parent A if Parent A were the primary parent.
- The difference between the two amounts is what the parent with the higher income will pay the other parent.
The idea behind this is that you'll be sharing the costs of looking after your children in a way that's fair to you both.
If you can't agree about child support in a shared parenting situation, a judge or master might figure out the amount using the steps above (this is called the set-off) or they might look at:
- how often the children are with the payor,
- the gross annual income of each parent or guardian (how much they earn before taxes and other deductions),
- the extra costs of sharing parenting time, and
- other factors, such as the standard of living of both parents or guardians and of the child being supported.
When do you need to give financial information to each other and to the court?
Sometimes people make informal agreements about child support (they basically sort out it themselves). For example, one person might just show their latest income tax return to prove how much they earn and nothing more. If you're working with a lawyer or mediator, you'll need to make a full disclosure of your financial information.
No matter how you make your agreement, you and the other person have to share (the law calls this disclosing) all the important information you need to reach a fair outcome. The Family Law Act calls this giving each other "full and true information."
If you go to court, both the Supreme Court and the Provincial Court have rules about disclosing financial information. All payors (and sometimes recipients) must give proof of their income by filing a financial statement at the court registry.
The rules about sharing financial information are there so that the court can make decisions about child support based on the facts about each person's income and not on what one person says.
The Supreme Court Family Rules (Rule 5-1), the Provincial Court (Family) Rules (Rule 4), and the Federal Child Support Guidelines all say when a payor and a recipient need to give financial information to each other.
If the other person doesn't share the information they're supposed to, you can ask the court to order them to share it.
If they still don't share the information, the court can impute income to that person.
What are the income tax rules about child support payments?
If your child support order was made on or after May 1, 1997, you don't pay income taxes on the child support you get. If you're the payor, you don't deduct your payments.
For more information about income tax rules, see the Tax Matters Toolkit, an online resource from the Canadian Bar Association that explains the rules that apply when you separate or divorce, including child support rules.
People who get child support don't have to declare the child support payments they get as income (child support isn't taxable). Payors of child support don't deduct child support from their income.
Cancelling or reducing arrears
Arrears are past support payments that haven't been paid. A judge or master can reduce or cancel arrears, but there has to be a very good reason for changing them.
The Family Law Act says a judge can cancel or reduce arrears if it would be grossly unfair not to do so.