Child support payments, either directly to a child who is over the age of majority (pursuant to agreement or court order), or to the parent with the majority of parenting time if the child is dependent, is the right of the child (DBS v SRG, 2006 SCC 37, confirmed recently by the Supreme Court of Canada in Michel v Graydon, 2020 SCC 24(“Michel v Graydon”)). Child support obligations are a debt that will survive all. They will survive bankruptcy, re-partnering, a new family, career decisions, and everything you may do, or not do, after separation from your co-parent. If you are a payor parent, you have a positive duty to make yourself aware of how much you owe in child support, and to pay it. A parent and guardian’s duty to support their children appropriately is codified in British Columbia at s. 147 of the Family Law Act, SBC 2011, c 25. It was also recently confirmed in Michel v Graydon (click here for a detailed brief on this landmark case).
Child Support in British Columbia
There are no exceptions to the obligation to pay child support in British Columbia. A payor parent may be able to reduce their child support obligations by proving “undue hardship” pursuant to section 10 of the Federal Child Support Guidelines, SOR/97-175(the “Guidelines”), but the threshold step to prove undue hardship is high. The British Columbia Court of Appeal (“BCCA”) has confirmed that “Hardship is not sufficient; the hardship must be “undue”, that is, “exceptional”, “excessive” or “disproportionate” in all of the circumstances (Van Gool v Van Gool, 1998 CanLii 5650 (BCCA) at para 51(“Van Gool”).). More recently, the BCCA used the words “severe, extreme, improper, unreasonable or unjustified” to describe the threshold [see Kelly v Kelly, 2011 BCCA 173 at para 33]. Van Goolhas been cited for the high threshold required to prove undue hardship in British Columbia as recently as this year [see Van Goolcitations]. It pays to be diligent in one’s knowledge and execution of any child support obligations. If not, British Columbia’s Family Maintenance and Enforcement Program will enforce child support obligations all the way to British Columbia’s version of debtor’s prison [see ss. 23 and 21(1)(e) of the Family Maintenance Enforcement Act, RSBC 1996, c 127].
Federal Child Support Guidelines
Child support obligations are presumptively guided by a payor parent’s Line 150 of their previous years’ tax return (or an average of the last three, depending on the employment of the payor). A payor parent is generally a parent who has less than 40% parenting time with the child(ren), or both parents in a shared parenting arrangement, whereby the higher-earning parent usually pays a set-off amount. To be clear, BOTH parents in a shared parenting arrangement have child support obligations. A set-off must be done appropriately for tax purposes. Seek counsel to be sure of your obligations.
The Guidelines can be found here. To determine your child support obligations, if you are a payor parent, the Department of Justice has a handy calculator tool (linked). Make sure to enter your province of residence.
If you have further questions about your obligations or rights around child support in British Columbia, please contact Caitlin MacDonell or any of the lawyers in the family practice group at Pettit & Company to arrange for a consultation.