Question: How do I determine entitlements to child support and spousal support?
Answers:
Determining entitlements to child support?
As a general proposition, a parent who is the biological parent of a child has an obligation to support that child while the child is under legal age, which in British Columbia, is under the age of 19. This is the obligation of both parents under both the Divorce Act and the Family Law Act. This applies whether or not the parties are married or unmarried. Support is generally payable by a parent who does not have the child living with them at least 40% of the time. Basic support is based upon the income of the paying parent, generally from the total income on their tax return for the prior year, but this can vary depending on the circumstances. Support will also vary depending upon the amount of children each couple has with the paying parent paying more as their income rises or their children increase in number. The actual support amounts are taken from a table published by the government of Canada as part of the Child Support Guidelines. Step parents can also be obligated to pay support for step children provided the application is made in a timely way but this is a secondary obligation most often to biological parents. Both parents have an obligation to support their children and this is reflected in the table amount.
The Court can also make an Order with respect to extra-ordinary expenses. These additional child expenses are those, which are necessary and reasonable. In determining what is reasonable, the Court will look at how the parties lived prior to separation and all of their financial resources at the time of the application. Certain expenses like daycare, medical expenses, insurance premium expenses, private school and post secondary school expenses along with extracurricular activities are included to this category but do not necessarily exhaust what could be an extra expense.
Determining entitlement to spousal support:
Pursuant to the Divorce Act and the Family Law Act, a spouse can apply for both interim and final spousal support. This entitlement arises under the Divorce Act simply because the parties are married.
Under the Family Law Act, same sex couples and common law couples who are in a marriage like relationship for a period of 2 years can apply for an Order of spousal support from the other party. If a person is applying for spousal support under the Family Law Act, they must do so within 2 years after they have ceased living together in that minimum 2-year relationship or within 2 years of having a child with the other person if they did not live together or within two years of their divorce if they were married.
There are two components to establishing support. One is entitlement and the second is duration and amount. Entitlement is generally established based upon the parties having an implied or actual agreement that support be paid based on the circumstances in their marriage. The second approach involves an assessment of the roles assumed in the marriage and a loss suffered by either spouse which needs to be compensated for and finally the last approach is purely based upon need that one spouse has because of the impact of the marriage breakdown leaves them with insufficient funds to have a reasonable standard of living related to what existed during the marriage. Spousal support is not guaranteed simply because parties are in a relationship but it is fair to say that the longer the relationship the more likely it is that spousal support will be granted and in long term marriages quite often there is an equal sharing of income after the marriage ends.
The amount of support varies in each case dependent upon the parties means and needs. This includes a broad analysis of the parties assets, liabilities, expenses, and income from all sources. If you feel you are entitled to support you should communicate with us for an analysis of your entitlement and likewise if support is being requested from you, you should contact us to ensure you are not paying an inappropriate amount of support. The Support Advisory Guidelines establish a range of support under various scenarios which is generally to be applied by the courts in resolving matters.