If a contract exists between spouses, that is usually enforced. There are always exemptions.
In order to meet the threshold of entitlement, a recipient of spousal support must show their entitlement arises in one of three ways:
- contractual based support;
- compensatory support;
- or needs-based support.
If a contract exists between spouses, that is usually enforced. There are always exceptions.
Compensatory support arises in many ways but typically where one spouse has given up career opportunities to follow the career of their spouse or to stay at home to look after the home or children or both.
That then triggers entitlement to be compensated for the role they took in the relationship. The longer that spouse has remained out of the work force or at a lower income than they otherwise would have, the greater their entitlement to compensation. Even after re-entry into the work force, and even if that spouse has income identical to what they would otherwise have or identical to that of the other spouse, they may still be entitled to compensation.
The third basis for entitlement can arise simply out of a differential in income. The longer there has been a differential in place, the greater the entitlement.
Once entitlement and the nature of entitlement have been identified, the next issue to be determined is the amount of support to be paid and whether that support ought to be retroactive.
The Child Support Guidelines were introduced with an intention to provide greater certainty for payors and recipients.
The problem with the Child Support Guidelines is that parents frequently have shared parenting arrangements (children living with the parents on an almost equal time basis) or split parenting arrangements (not all the children are with one parent).
These factors have to be taken into account when determining the appropriate amount of child support to be paid by one parent or both of them or whether there should be a set off of support payable.
In addition to the basic amount of child support payable, the issue of special or extraordinary expenses arise pursuant to Section 7 of the Child Support Guidelines. Section 7 expenses are in addition to the basic child support payable. Some common Section 7 expenses are:
Daycare to enable the parents to work; and
Net medical or extended health costs for the child
Extracurricular activities can sometimes be classified as Section 7 expenses to be paid for by the parents in proportion to their incomes.
For affluent parents in which there is a high amount of child support payable, enrolling a child in a basic extracurricular activity (basketball, swimming and so forth) is relatively inexpensive and adequately covered by basic child support payable.
For parents of lesser means, sometimes even a basic extracurricular activity is beyond that parent’s ability to afford without contribution to that activity by the other parent.
The concept of a Section 7 expense is a fluid concept that varies depending upon the child’s circumstances and the parents’ circumstances. There is a need to determine what would be a Section 7 expense and whether in the circumstances it would be appropriate for that Section 7 expense to be paid for by the parents. There are numerous factors to be taken into account in reaching conclusions regarding Section 7 expenses.
Sometimes it is not enough to simply request T1 Generals (Income Tax Returns) for the last three years and recent pay stubs from your spouse. It is sometimes necessary to dig deeper.
If income can be diverted or undeclared, a reverse analysis is sometimes required.
A reverse analysis is a determination of a spouse’s income by an examination of their expenses. By reviewing a spouse’s credit card expenditures and bank statements showing payment of accounts or other withdrawals and deposits, a clearer picture can arise as to what one truly has available by way of income.
The payment of expenses is usually done on an after tax basis. In other words, if someone is paying their mortgage, utility bills, car payments and credit card payments each month, they are doing so with after tax dollars.
Adding up the total of expenditures being incurred then requires that sum to be “grossed up” for Guideline purposes. Grossing up simply means converting a net amount into the equivalent of a taxable amount. Child support and spousal support are based on gross income earned, subject to minor deductions as set out in the legislation and the schedules.
Children Over The Age of 19
The age of majority in British Columbia is 19.
Frequently, child support is payable only to the age of nineteen and not beyond. However, there are numerous occasions in which a child continues to be eligible for child support well beyond the age of majority.
Two common examples of this are if a child has special needs and unable to support themselves and when a child is attending University (or post-secondary education). The definition of child of the marriage includes a child over the age of majority but unable “by reason of illness, disability or other cause, to withdraw” from the care of the parent or to obtain the necessities of life on their own. There are numerous considerations that must be taken into account in determining not only whether child support ought to be payable beyond the age of nineteen but also the amount of child support.
In connection with the amount of child support payable the Child Support Guidelines specifies that support for a child over the age of majority is still the amount set out in the Guidelines unless the court considers that approach to be inappropriate. For example a child may be able to contribute to their own support or post-secondary education.
In connection with post-secondary education (the most frequent reason for child support continuing beyond the age of nineteen) numerous factors have to be taken into account including the following:
What were the parents plans during their cohabitation regarding the child’s post-secondary education;
Whether the parents have the means to contribute to the child’s post-secondary education;
Whether the child has the means to contribute to their own post-secondary education;
Whether the child is attending post-secondary education on a full time basis or not;
Whether the child is doing well in the pursuit of post-secondary education; and
Whether the child has a career plan or simply attending post-secondary education because there is nothing better to do.