If you and your partner have a child together and are facing the prospect of divorce or the breakdown of your relationship, child support will be a key legal issue you must face. How are child support payments determined in Canada? The amount of support payable depends on your incomes, the number of children, and how your children’s time is divided among you.
Under the Canadian constitution, the federal government has jurisdiction over “divorce,” while the provinces have different statutes governing unmarried couples. However, the principles and process for child support in Vancouver are very similar nation-wide.
The Baseline Rule
Some aspects of Canadian family law, particularly decisions about custody, are highly flexible. In contrast, child support calculations apply relatively mechanically, comparing incomes of the parents and where the children reside.
For children under age 18, once custody and parenting arrangements in Vancouver are set, the child support guidelines can looked up. The amount of child support payable by each of the parents is commonly determined based on the total gross income on line 150 of their income tax return, the number of children involved and residency. You can view the child support tables and an approximate calculator online.
If you have joint custody and each parent has 41 to 59 percent access of the children, the courts start with the presumption that the net child support paid considers both incomes – as if you each pay child support to each other. The courts then consider other factors particular to each case, particularly, any increased costs involved with accommodating shared custody, such as transportation. If one parent is receiving only spousal support, then that amount is included for the purposes of determining net child support. The higher income parent will pay the net difference to the other for the benefit of the child or children.”
If the parties have joint or sole custody and the children live primarily with one parent (over 60 percent of the time), then only the other parent pays child support, based on a value determined by the tables (according to the “60-40 rule”). In this case, courts look to the table values, as well as increased costs stemming from the arrangement and circumstances of the spouses.
If you and your spouse “split” custody of your child or children and each have full custody and residency of one or more of a group of children, then payments are “offset,” calculated as though each parent paid support to one another, with the effect being that the higher payment is reduced by the lower.
Deviations from Table Values
The application of charts and formulas is not entirely rigid, and many factors under the guidelines allow courts to deviate from payments dictated by support tables, such as:
- One parent’s income is over $150,000;
- The court agree’s with the payor’s claim for undue hardship;
- The child is age 19 or older and not in school full-time;
- The payor is a step-parent; or
- One parent makes a claim for special or extraordinary expenses.
Consider the recent case of JRM v KVH, 2017 BCPC 25 (CanLII), where two parents that shared custody of a six-year-old and both had fallen on hard times (a bankruptcy and the loss of a job). The case provides a thorough discussion of the framework to be applied; noting that while it is “not a simple mathematical calculation,” determining support in an equal time-sharing arrangement started by considering the amount of support each parent would pay to the other had they had full custody (as with split custody). In this instance, the court deemed that the set-off formula would provide for just payments; however, the judge suggested that factors such as disproportionate earnings potential (even if unexercised) or expensive recreation on the part of the parents could justify deviations.
What Happens When Children Reach Age of Majority?
The rules apply differently when the calculations involve children over the age of majority, which is 19 in British Columbia. The Divorce Act allows parents to claim support for adult children that are “unable to withdraw” from the “charge” of their parents, for reasons that include illness, disability, or “other cause” (which frequently include post-secondary education).
In applying support provisions to adult children, the courts treat child support tables as a baseline against which changes must be justified. The BC Supreme Court outlines the framework that courts use in Wesemann v Wesemann, 1999 CanLII 5873 (BC SC):
- Is the child a child “of the marriage” (particularly, are they unable to withdraw)?
- Is calculating support as though the child was a minor challenged?
- If a party challenges, can they show that the “minor child” approach is inappropriate?
- If it is inappropriate, determine the appropriate amount, considering the condition, means, needs, and other circumstances of the child and the financial ability of each spouse to contribute.
Catallo v Catallo, 2015 BCSC 1276 (CanLII) summarizes the rules applying to adult children attending university; in this case, the child of a divorced family moved from Vancouver to Victoria, and continued to be involved in competitive horse-riding. The judge considered their daughter to have remained a child of the marriage, and that Mr. Catallo would be liable for ongoing child support.
The case is particularly notable for its discussion on the calculation of child support. The increased cost of their daughter attending school away from home contrary to her father’s preference resulted in the expectation that she shoulder some of the increased cost herself. Also considered was the reduced cost to her mother in maintaining the home while her daughter was away and the increased cost when she returned over the summer.
Even with that in mind, we have not discussed the impact of “domestic contracts,” agreements altering the rights and obligations of parents during and after relationships, when a new partner’s income is taken into consideration, or the special financial needs of some children, including children with special needs.
Contact Donald B. Phelps Law Corporation, Family Law Lawyers in Vancouver
If you are concerned about receiving fair child support in Vancouver for your family or that payments requested for you are disproportionate, contact our lawyers at 604-736-3722 to arrange for your legal consultation.