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This Act is current to July 12, 2017
See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force.

Family Law Act

[SBC 2011] CHAPTER 25

Part 7 — Child and Spousal Support

Division 1 — Definitions

Definitions

146  In this Part and section 247 [regulations respecting child support]:

"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians;

"guardian" does not include a guardian

(a) who is not a parent, and

(b) whose only parental responsibility is respecting the child's legal and financial interests;

"parent" includes a stepparent, if the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child];

"stepparent" means a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life.

Division 2 — Child Support

Duty to provide support for child

147  (1) Each parent and guardian of a child has a duty to provide support for the child, unless the child

(a) is a spouse, or

(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.

(2) If a child referred to in subsection (1) (b) returns to his or her parents' or guardians' charge, their duty to provide support for the child resumes.

(3) If a guardian who is not the child's parent has a duty to provide support for that child, the guardian's duty is secondary to that of the child's parents.

(4) A child's stepparent does not have a duty to provide support for the child unless

(a) the stepparent contributed to the support of the child for at least one year, and

(b) a proceeding for an order under this Part, against the stepparent, is started within one year after the date the stepparent last contributed to the support of the child.

(5) If a stepparent has a duty to provide support for a child under subsection (4), the stepparent's duty

(a) is secondary to that of the child's parents and guardians, and

(b) extends only as appropriate on consideration of

(i) the standard of living experienced by the child during the relationship between the stepparent and his or her spouse, and

(ii) the length of time during which the child lived with the stepparent.

Agreements respecting child support

148  (1) An agreement respecting child support is binding only if the agreement is made

(a) after separation, or

(b) when the parties are about to separate, for the purpose of being effective on separation.

(2) A written agreement respecting child support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.

(3) On application by a party, the court may set aside or replace with an order made under this Division all or part of an agreement respecting child support if the court would make a different order on consideration of the matters set out in section 150 [determining child support].

Orders respecting child support

149  (1) Subject to subsection (3), on application by a person referred to in subsection (2), a court may make an order requiring a child's parent or guardian to pay child support to a designated person.

(2) An application may be made by

(a) a child's parent or guardian,

(b) the child or a person acting on behalf of the child, or

(c) if the right to apply for an order under this section is assigned to a minister under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act, the minister to whom the right is assigned in the name of the government or the name of the person who made the assignment.

(3) An order under subsection (1) may only be made against a stepparent if

(a) the stepparent has a duty to provide for the child under section 147 (4) [duty to provide support for child], and

(b) the stepparent and the child's parent are separated.

(4) The making of an order against one person for the support of a child does not affect the liability of, or prevent the making of an order against, any other person responsible for the support of the child.

Determining child support

150  (1) If a court makes an order respecting child support, the amount of child support must be determined in accordance with the child support guidelines.

(2) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if

(a) the parties consent under section 219 [persons may consent to order being made] or have an agreement respecting child support, and

(b) the court is satisfied that reasonable arrangements have been made for the support of the child.

(3) The court must consider the child support guidelines for the purposes of subsection (2), but must not consider arrangements made for the support of the child to be unreasonable only because the amount required under the child support guidelines differs from those arrangements.

(4) Despite subsection (1), a court may order child support in an amount different from that required by the child support guidelines if satisfied that

(a) an agreement or order respecting the financial duties of the parents or guardians or the division or transfer of property, other than an agreement respecting child support, benefits the child directly or indirectly, or that special provisions have otherwise been made for the benefit of the child, and

(b) applying the child support guidelines would be inequitable on consideration of the agreement, order or special provisions.

(5) If a court makes an order respecting child support in an amount different from that required under the child support guidelines, it must give reasons for doing so.

If parentage at issue

151  If the parentage of a child is at issue in a proceeding for an order respecting child support, the court, regardless of whether an application is made under section 31 [orders declaring parentage], may do one or both of the following:

(a) make an order respecting the child's parentage in accordance with that section;

(b) make an order under section 33 (2) [parentage tests].

Changing, suspending or terminating orders respecting child support

152  (1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:

(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.

Division 3 — Child Support Service

Definitions

153  In this Division and the regulations made under section 247 (2) [regulations respecting child support]:

"amended statement of recalculation" means a statement of recalculation given after a correction is made under section 156 [correction of recalculation];

"child support service" means the child support service established under section 154 [establishment of child support service];

"notification date" means the date on which both the payor and the recipient are deemed, under the regulations, to have received a statement of recalculation or an amended statement of recalculation;

"payor" means a person who, under an agreement or order, must pay child support;

"recalculated amount" means the child support a payor must pay after recalculation under section 155 [recalculation of child support] by the child support service;

"recipient" means a person to whom child support must be paid;

"statement of recalculation" means a written notice by which the child support service notifies payors and recipients of recalculated amounts.

Establishment of child support service

154  (1) The minister may establish a child support service for the purposes set out in this section.

(2) The child support service may do all of the following:

(a) assist courts in determining child support;

(b) recalculate child support under section 155 [recalculation of child support];

(c) perform additional duties as required by the minister.

Recalculation of child support

155  (1) Subject to the regulations, the child support service may recalculate child support if the child support was originally determined in accordance with the child support guidelines and established by

(a) an agreement that

(i) includes prescribed provisions, and

(ii) has been filed in a prescribed court registry and given to the child support service, or

(b) an order that is issued out of a prescribed court registry.

(2) The child support service may recalculate child support only

(a) on the basis of updated income information, and

(b) in accordance with this Act and the regulations made under it.

(3) After recalculating child support, the child support service must give a statement of recalculation to the payor and the recipient.

(4) Subject to section 157 [changing, suspending or terminating recalculated amounts], if the recalculated amount differs from the current child support by at least the prescribed difference, the recalculated amount, or if corrected under section 156 [correction of recalculation], the corrected recalculated amount,

(a) is deemed for all purposes to be the amount payable under an agreement or order respecting child support, and

(b) takes effect 31 days after the notification date.

(5) If an order for child support is issued out of a prescribed court registry,

(a) the order must indicate which provision of the child support guidelines is relevant to the determination of child support by the court, and

(b) the registry must promptly provide a copy of the order to the child support service.

Correction of recalculation

156  (1) The child support service may amend a statement of recalculation to correct one or more of the following:

(a) a clerical or typographical error;

(b) an arithmetical error made in the computation of the recalculated amount;

(c) an error or accidental or inadvertent omission or other similar mistake.

(2) The child support service may make a correction

(a) on its own initiative within the prescribed period, or

(b) on the request of a payor or recipient, if the request is made

(i) in the form and manner prescribed, and

(ii) within the prescribed period.

(3) If a statement of recalculation is corrected, the child support service must notify the payor and recipient of the correction by sending to them an amended statement of recalculation.

Changing, suspending or terminating recalculated amounts

157  (1) On application by a payor or recipient who disagrees with a recalculated amount or, if corrected under section 156 [correction of recalculation], a corrected recalculated amount, a court may make an order under section 152 [changing, suspending or terminating orders respecting child support].

(2) An application under subsection (1)

(a) may be made no more than 30 days after the notification date, and

(b) must be made to the court that made the order respecting child support or in which the agreement respecting child support was filed.

(3) If an application is made under this section, the operation of section 155 (4) [recalculation of child support] is suspended, and the current child support continues in effect until

(a) an order is made under section 152, in which case, the payor is liable to pay child support as ordered by the court on and after the effective date of the order,

(b) the application is dismissed or withdrawn, in which case, the payor is liable to pay child support in the amount set out in the statement of recalculation as of 31 days after the notification date, or

(c) the prescribed period has passed without the applicant having taken a prescribed step in the application, in which case, the payor is liable to pay child support in the amount set out in the statement of recalculation as of 31 days after the notification date.

Information to be given to child support service

158  (1) The following persons must promptly provide, on request of the child support service, prescribed information to the child support service at the prescribed times and in the prescribed manner:

(a) the payor, the recipient, and the assignees of each of them, to a written agreement respecting child support that has been filed in a court;

(b) the payor, the recipient, and the assignees of each of them, to a proceeding started in a prescribed court registry in which an order for child support is made.

(2) If a person does not provide information as required under subsection (1), the child support service, in recalculating amounts of child support, may make the assumptions and apply any factors or criteria set out in the regulations.

(3) A person required to provide information under subsection (1) may authorize the child support service, by giving the prescribed form to the child support service in the prescribed manner, to request and receive the information from any other person.

Notices

159  (1) A notice or other record required to be given under this Division or the regulations made under section 247 [regulations respecting child support] is deemed to be received on the last date of the prescribed period.

(2) If a child support service is required to give a notice or other record, the notice or other record must be given in accordance with the regulations.

Division 4 — Spousal Support

Duty to provide support for entitled spouse

160  If, after considering the objectives set out in section 161 [objectives of spousal support], a spouse is entitled to spousal support, the other spouse has a duty to provide support for the spouse in accordance with section 162 [determining spousal support].

Objectives of spousal support

161  In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives:

(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;

(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;

(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses;

(d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

Determining spousal support

162  The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following:

(a) the length of time the spouses lived together;

(b) the functions performed by each spouse during the period they lived together;

(c) an agreement between the spouses, or an order, relating to the support of either spouse.

Agreements respecting spousal support

163  (1) An agreement respecting spousal support may provide for the circumstances under which spousal support will change or end, including if a spouse lives with another person or enters a relationship with another spouse, but a condition of spousal support that the spouse abstain from sexual relations after separation is not binding.

(2) Despite section 160 [duty to provide support for entitled spouse], in making an agreement respecting spousal support, a spouse may agree to release the other spouse from liability for spousal support.

(3) A written agreement respecting spousal support that is filed in the court is enforceable under this Act and the Family Maintenance Enforcement Act as if it were an order of the court.

Setting aside agreements respecting spousal support

164  (1) This section applies if spouses have a written agreement respecting spousal support, with the signature of each spouse witnessed by at least one person.

(2) For the purposes of subsection (1), the same person may witness each signature.

(3) On application by a spouse, the court may set aside or replace with an order made under this Division all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement:

(a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement;

(b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress;

(c) a spouse did not understand the nature or consequences of the agreement;

(d) other circumstances that would under the common law cause all or part of a contract to be voidable.

(4) The court may decline to act under subsection (3) if, on consideration of all of the evidence, the court would not replace the agreement with an order that is substantially different from that set out in the agreement.

(5) Despite subsection (3), the court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following:

(a) the length of time that has passed since the agreement was made;

(b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse;

(c) the intention of the spouses, in making the agreement, to achieve certainty;

(d) the degree to which the spouses relied on the terms of the agreement;

(e) the degree to which the agreement meets the objectives set out in section 161 [objectives of spousal support].

(6) Despite subsection (1), the court may apply this section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances.

Orders respecting spousal support

165  (1) On application, the court may order a spouse to pay to a designated person the amount the court considers appropriate as spousal support after taking into consideration section 160 [duty to provide support for entitled spouse].

(2) An application under subsection (1) may be made

(a) by either spouse or both,

(b) on behalf of a spouse, by a designated agency under the Adult Guardianship Act after an investigation conducted under Part 3 of that Act, or

(c) if the right to apply for an order under this section is assigned to a minister under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act, by the minister to whom the right is assigned in the name of the government or the name of the person who made the assignment.

(3) The court may not make an order respecting spousal support if the spouses have an agreement described in section 164 (1) [setting aside agreements respecting spousal support], unless all or part of the agreement is set aside under that section.

Misconduct of spouse

166  In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably

(a) causes, prolongs or aggravates the need for spousal support, or

(b) affects the ability to provide spousal support.

Changing, suspending or terminating orders respecting spousal support

167  (1) On application, a court may change, suspend or terminate an order respecting spousal support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:

(a) a change in the condition, means, needs or other circumstances of either spouse has occurred since the order respecting spousal support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

(c) evidence of a lack of financial disclosure by either spouse was discovered after the order was made.

(3) Despite subsection (2), if an order requires payment of spousal support for a definite period or until a specified event occurs, the court, on an application made after the expiration of that period or occurrence of that event, may not make an order under subsection (1) for the purpose of resuming spousal support unless satisfied that

(a) the order is necessary to relieve economic hardship that

(i) arises from a change described in subsection (2) (a), and

(ii) is related to the relationship between the spouses, and

(b) the changed circumstances, had they existed at the time the order was made, would likely have resulted in a different order.

Review of spousal support

168  (1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for

(a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred,

(b) the type of family dispute resolution by which the review will take place,

(c) the grounds on which a review will be permitted, and

(d) the matters to be considered for the purposes of a review.

(2) On review, a court, on application, may do one or more of the following:

(a) confirm an agreement or order respecting spousal support;

(b) set aside all or part of an agreement, or terminate an order, respecting spousal support;

(c) make an order under section 165 [orders respecting spousal support].

(3) In making an order under this section, the court is not required to consider any of the matters referred to in sections 164 [setting aside agreements respecting spousal support] and 167 (2) [changing, suspending or terminating orders respecting spousal support].

Review of spousal support if pension benefits

169  (1) This section applies if an agreement or order does not address whether spousal support may be reviewed under section 168 [review of spousal support] and if

(a) a spouse who must pay spousal support starts receiving benefits under a pension, or

(b) a spouse who is entitled to receive spousal support becomes eligible to receive benefits under a pension.

(2) In the circumstances set out in subsection (1), a court, on application, may do one or more of the following:

(a) confirm an agreement or order respecting spousal support;

(b) set aside all or part of an agreement, or terminate an order, respecting spousal support;

(c) make an order under section 165 [orders respecting spousal support].

(3) In making an order under this section, the court is not required to consider any of the matters referred to in sections 164 [setting aside agreements respecting spousal support] and 167 (2) [changing, suspending or terminating orders respecting spousal support].

Division 5 — General

Matters that may be provided for in support orders

170  In an order respecting child support or spousal support, the court may provide for one or more of the following:

(a) that payments be made periodically, annually or otherwise, for an indefinite or limited period or until a specified event occurs;

(b) that child support or spousal support be paid respecting any period of time before the date the application for the order is made;

(c) that payment of a lump sum be made, directly or in trust;

(d) that a charge be registered against specific property to secure payment;

(e) that a person who has a contract of life insurance within the meaning of Part 3 of the Insurance Act

(i) designate his or her spouse or child as a beneficiary, irrevocably or for the period designated by the court, and

(ii) either pay all premiums on the policy, or authorize his or her spouse to pay all premiums on the policy and to compensate the spouse for doing so;

(f) that expenses arising from and incidental to prenatal care of a mother or child, or the birth of a child, be paid, except in relation to the prenatal care of a surrogate within the meaning of section 29 (1) [parentage if surrogacy arrangement];

(g) subject to section 171 (1) [support obligations after death], that a duty to pay child support or spousal support continues after the death of the person having the duty, and is a debt of his or her estate for the period fixed by the court.

Support obligations after death

171  (1) Before making an order under section 170 (g) [matters that may be provided for in support orders], the court must consider all of the following factors:

(a) that the person receiving child support or spousal support has a significant need for support that is likely to continue past the death of the person paying child support or spousal support;

(b) that the estate of the person paying child support or spousal support is sufficient to meet the need referred to in paragraph (a) after taking into account all claims on the estate, including those of creditors and beneficiaries;

(c) that no other practical means exist to meet the need referred to in paragraph (a).

(2) If an agreement, or an order under section 170 (g), is made and the person having a duty to pay child support or spousal support dies, the person's personal representative may make an application, and the court may make an order, to

(a) set aside or replace with an order made under this Part all or part of the agreement, or

(b) change, suspend or terminate the order.

(3) If a person having a duty to pay child support or spousal support under an agreement or order dies and the agreement or order is silent respecting whether the duty continues after the death of the person and is a debt of his or her estate,

(a) the person receiving support may make an application under section 149 [orders respecting child support] or 165 [orders respecting spousal support], and

(b) if, on consideration of the factors set out in subsection (1) of this section, an order is made, the duty to pay child support or spousal support continues despite the death of the person and is a debt of his or her estate for the period fixed by the court.

Separate support amounts required

172  If the court makes both an order for child support and an order for spousal support, the court must specify the amounts of support separately rather than as a single amount.

Priority of child support

173  (1) In making an agreement or order respecting spousal support, the parties to the agreement and the court must give priority to any duty to pay child support.

(2) If, as a result of giving priority to a duty to pay child support, the parties do not make an agreement respecting spousal support or make an agreement respecting spousal support in an amount that is less than it otherwise would have been,

(a) the agreement must indicate that the circumstances referred to in this subsection apply, and

(b) if child support is subsequently reduced or terminated,

(i) the reduction or termination is a change in circumstances, and

(ii) the court may make an order under section 165 [orders respecting spousal support].

(3) If, as a result of giving priority to a duty to pay child support, a court is unable to make an order respecting spousal support or makes an order respecting spousal support in an amount that is less than it otherwise would have been,

(a) the court must give reasons for doing so, and

(b) if child support is subsequently reduced or terminated,

(i) the reduction or termination is a change in circumstances, and

(ii) the court may make an order under section 165 or 167 [changing, suspending or terminating orders respecting spousal support], as applicable.

(4) Section 164 [setting aside agreements respecting spousal support] does not apply to the making of an order under this section.

Reducing or cancelling arrears

174  (1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.

(2) For the purposes of this section, the court may consider

(a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support,

(b) the reasons why the person responsible for paying support cannot pay the arrears owing, and

(c) any circumstances that the court considers relevant.

(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.

(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under section 11.1 of the Family Maintenance Enforcement Act, on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest.

Contents | Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14