The duty to pay child support is based on a parent’s obligation, under the old common law, to provide his or her child with the “necessities of life.” This duty, which continues to be a part of the Criminal Code, is now expressed and fleshed out in two laws, the federal Divorce Act and the provincial Family Law Act. Although these laws have a lot in common, they also have some significant differences.
The Divorce Act only applies to people who are or used to be married to each other, and, for reasons that I’ll explain in another column, is only available in the Court of Queen’s Bench. The Family Law Act applies to everyone, including married spouses, adult interdependent partners (common-law spouses), and people who had a child together and are neither spouses nor partners. Both the Court of Queen’s Bench and the Provincial Court can make orders under the Family Law Act.
The obligation to pay child support is generally triggered when parents separate. Of course, they each have the duty to support their child during their relationship, and that’s covered by the Criminal Code and the law on child protection. When and how much gets paid can be decided by a court order or the parents’ written or oral agreement. Child support is usually payable until a child turns 18, it is usually paid monthly, and the amount payable is almost always determined using the Child Support Guidelines.
Myth: You don’t have to pay child support if you give up your rights as a parent. In fact, a parent has to pay child support whether he or she is present or absent from the child’s life. Because the right to benefit from the payment of child support belongs to the child, not the parents, parents cannot agree to waive child support in return for waiving the entitlement of one of them to be involved in their child’s life.
Those are the general rules, but there are exceptions. Lots of them.
Who Can Ask for Support
Under the Divorce Act, only a spouse can ask another spouse to pay support. Under the Family Law Act, a parent or guardian can ask a parent to pay support, as can anyone who has “care and control” of the child and the child him- or herself.
Who Has to Pay Support
The basic rule is that the person who has the child for the least amount of time pays support to the person who has the child for the most amount of time.
Under the Divorce Act, spouses must support their own children. A stepparent spouse may have to support a child brought into the marriage if he or she “stands in the place of a parent” to that child. Whether someone stands in the place of a parent depends on the nature of his or her relationship to the child; the court would look at factors such as whether the spouse provides for the child, disciplines the child as a parent and represents him- or herself as being responsible for the child. A 1999 case from the Supreme Court of Canada, Chartier v Chartier, talks about this issue in a lot more detail.
Under the Family Law Act, parents must support their children. “Parent” includes spouses and partners who stand in the place of a parent to a child brought into the relationship, as long as they have demonstrated a “settled intention” to treat the child as their own. The Family Law Act provides a list of factors for the court to consider, which include the length of the child’s relationship with the person, the nature of their relationship and the person’s support of the child.
Myth: You don’t have to pay child support if access is withheld. In fact, a parent has to pay child support regardless of whether the other parent is denying access, even if the denial is a breach of an order or an agreement. Child support and access are entirely separate issues.
Our discussion of child support will continue in the next issue of LawNow.