Parents have a legal duty to support their children, even if one parent doesn’t see or take care of the children. Learn about child support and how to get it.
Understand the legal framework
Child support is money paid by one parent to the other to help cover the expenses associated with raising the children.
Child support is paid when the relationship between the parents has ended. The parent who the child lives with most of the time is entitled to child support from the other parent. If a child spends equal (or almost equal) time with both parents, the parent with the higher income will usually have to pay child support.
Payments of child support can be set out in a written agreement between the parents or in an order made by a court.
It is important to know that after parents separate, child support is the legal right of the child, whether or not there is an agreement or a court order in place.
Parents are under a legal duty to provide child support. This includes biological parents, parents who have had a child through assisted reproduction, and adoptive parents. It includes unmarried parents and married parents.
When a child was conceived with assisted reproduction, a surrogate mother can be a parent obliged to pay child support unless the people who wanted to have the child have an agreement with the surrogate mother that says otherwise.
A donor of egg or sperm is not a parent who is required to pay child support unless the people who wanted to have the child have an agreement with the donor that says otherwise.
A stepparent can be required to pay child support. This can happen under the Divorce Act if the couple was married and the stepparent had a parent-like relationship with the child. It can also happen under the Family Law Act where:
- the stepparent contributed to the support of the child for at least one year, and
- a claim for child support is made against the stepparent within one year of their last contribution.
A stepparent can be obliged to pay child support even when the other biological parent is already paying child support.
The amount of child support is determined under a law called the Federal Child Support Guidelines. The Guidelines specify the amount of support based on the paying parent’s income, the province or territory of residence, and the number of children child support is being paid for. There are some exceptions to this general approach, which we explain below.
This basic child support amount is a contribution to the child’s basic expenses and to the cost of raising the child. This includes the child’s share of the rent or mortgage, phone bill, utility bills, cable bill, grocery costs, clothing, haircuts, basic school supplies, toiletries, and so forth.
In some cases, both parents may be obliged to contribute to certain expenses for the child on top of the basic amount of child support. These are four types of expenses that normally qualify as special or extraordinary expenses (there can be others as well):
- child care expenses, so the parent who looks after the child can work or go to school in order to get work
- medical or health-related expenses for the child, including the cost of medical insurance
- some educational expenses, including post-secondary education or private school fees
- some expenses for extracurricular activities like music, art lessons, or sports
These types of expenses don’t automatically qualify as “special or extraordinary” expenses. To qualify, the expenses have to be reasonable in light of the parents’ financial circumstances and the child’s needs. As a result, piano lessons might qualify as a special or extraordinary expense for one family but not for another.
If an expense qualifies as a “special or extraordinary” expense, both parents must contribute to the cost of the expense in proportion to their incomes.
If both parents have the same income, they would each pay for one-half of the cost of the expense. If parents have different incomes, they pay in the proportion of their individual incomes to the total income of both parents. For example, say a father has an income of $20,000 and a mother has an income of $30,000. Together, their incomes total $50,000. Of this total amount, the father’s income is 40%, and the mother’s is 60%. So the father would pay for 40% of the cost of a qualifying special or extraordinary expense and the mother would pay for 60% of the cost.
The cost of special expenses that parents share is the cost left over after any tax benefits or subsidies are taken into account (such as the federal tax deduction available for child care expenses).
If the parent paying child support looks after the child for at least 40% of the time over the course of a year, this is called “shared custody”. In this case, the parent may be able to pay a lower amount of child support than what the Federal Child Support Guidelines normally require.
In a shared custody arrangement, each parent pays child support to the other, as the child lives with each parent equally or close to equal time. In cases like these, a court will look at each parent’s income, household financial circumstances, and the financial needs of the child to determine the appropriate child support amount payable by the parent with greater income.
When each parent has one or more children in their care, this is called “split custody”. In this case, each parent is supposed to pay the full amount of child support to the other parent for the child in that parent’s care. The amount that changes hands is the difference between the higher amount and the lower amount.
For example, say a father would have to pay a mother $400 per month for the child in her care, and the mother would have to pay the father $250 per month for the child in his care. The father would pay the mother $150: the difference between what he owes her and what she owes him.
In certain circumstances, a court can order that more or less child support be paid than what the Federal Child Support Guidelines require. For this to happen, a parent must show the payments required by the Guidelines would cause “undue hardship”. Undue hardship means the required payments would be very unfair and cause a very significant financial problem for either the parent receiving support or the parent paying it.
When a claim of undue hardship is made, the court will look at the standard of living of each parent’s household, including the income from a new spouse or live-in boyfriend or girlfriend, and compare each household’s standard of living against the other. Proving undue hardship is complicated, and it is advisable to speak with a lawyer.
Child support can be agreed to in a separation agreement. If parents cannot agree, one of them can start a court case and ask the court for an order that child support be paid.
Which court to apply to
An application for a child support order can be made to either the British Columbia Provincial Court (in Family Court) or the Supreme Court. Each court has its own set of forms and rules. Usually, it’s simpler and less expensive to obtain a child support order in Family Court. For more on this option, see our information on Family Court (no. 110).
However, Family Court cannot grant a divorce order, divide property or debts, or make orders about family property. If the parties are asking for orders like these, it may be better to proceed in Supreme Court, where everything can be dealt with in one court case.
To obtain an order for child support, financial disclosure must be made. The paying parent must provide proof of their income, which usually includes paystubs, recent income tax returns, and other financial documents. In some cases, such as where the parents are sharing “special or extraordinary” expenses or share the child’s time, the receiving parent will also be required to make financial disclosure.
After a court case is started, a parent can apply to court for an interim order for child support. This is a temporary order meant to last until the case is settled or goes to trial, and can usually be obtained relatively quickly.
The amount of interim support a court awards may be different than it decides after a trial, when the best information about the parents’ incomes and financial circumstances is usually available. For more on interim orders, see our information on applying for an interim order in a family law case in Supreme Court (no. 112).
Child support is paid for as long as the child continues to be a “child” as defined by the Divorce Act or the Family Law Act. In British Columbia, a child is someone under the age of 19, the provincial age of majority, or who is 19 or older but is financially dependent on a parent. For example, a student taking post-secondary studies or an adult child with serious health problems may continue to qualify as a child even though they are over the age of 19.
Not necessarily. If the person paying child support is a stepparent, they may pay less child support than what the Federal Child Support Guidelines would normally require. There is no formula to do this calculation; often the court treats the stepparent’s obligation as a top up to the amount that should be paid by the child’s birth parent.
If a parent is receiving income assistance, they can get help from the BC government with getting child support. The parent can assign their rights to child support to the Ministry of Social Development and Poverty Reduction and the Ministry will help get a child support order or agreement.
Child support orders can be made to start at an earlier date than the date when an agreement is reached or a court order is made. These are called “retroactive” orders. In general, the court will make a retroactive order when there is an obligation to pay child support that was not met, or an obligation to pay a higher amount of support than what was paid, but usually for no more than three years before the date of the application for retroactive child support.
Either parent can apply to have an order or agreement about child support changed if there is a change in circumstances. Examples include where there is an increase or decrease in one parent’s income, or a change in the child’s living arrangements. To ensure the appropriate child support amount is being paid, parents should review child support payments annually by exchanging updated financial information. If there has been a change, the Federal Child Support Guidelines should be consulted to determine what new amount of child support should be paid.
If a parent doesn’t pay the child support owing under an order or an agreement, the Family Maintenance Enforcement Program can help. This BC government program can help you collect support payments that are owed and monitor a support order or an agreement to make sure payments continue to be made. For more details, see our information on enforcing support orders and agreements (no. 132).
Family justice counsellors in Family Justice Centres throughout British Columbia can help parents with understanding the Child Support Guidelines, preparing a separation agreement, and obtaining a support order in Provincial Court. Their services are free.
Telephone: 604-660-2421 in the Lower Mainland and 250-387-6121 in Greater Victoria
For more information about the Federal Child Support Guidelines, Child Support Officers are available in Vancouver, Surrey, Kelowna and Nanaimo.
Telephone: 604-660-2084 and 604-501-3100 in the Lower Mainland
Toll-free: 1-800-578-8511 and 1-888-227-7734
The Legal Services Society’s Family Law in BC website features information on child support and step-by-step guides on going to court in family matters.
The wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, has indepth information on child support.
This information applies to British Columbia, Canada
Reviewed in May 2017
Time to read: 10 minutes