FAMILY LAW ACT Child Support andSpousal Support

Laurence S. Klass

Child Support

Definitions: [S. 146]

• For the purposes of support the definition of a child remains the same as in the current regulations.

• The FLA draws a distinction between Guardians who are parents and those who are not for child support purposes.

• The term Guardian is a product of the FLA. • The FLA sets out when support for children

under the age of 19 does not have to be paid.

• The act does not include a guardian who is not a parent and whose only parental responsibility is in respect of the child’s legal and financial interests.

• Parent includes a stepparent if the stepparent has a duty to provide for the child, stepparents must be separated to be liable.

Definitions: [S. 146]

[S. 147] Duty to provide support for child

(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withdrawn from his or her parents or guardians charge unless withdrawal due to family violence or intolerable home conditions. (this is new under the act)

(2) If a guardian who is not the child’s parent has a duty to provide support this is secondary to that of the child’s parents

(3) A Childs stepparent doesn’t 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 of the date that the stepparent last provided support

(i) if a stepparent has a duty to provide support that duty is secondary to that of the child’s parents and guardians and extends only as appropriate considering standard of living during relationship and length of time child lived with step-parent

S.148- Agreements respecting child support

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

(c) after separation, or(d) when the parties are about to separate, for the

purpose of being effective on separation (2) Agreement may depart from guidelines if court

satisfied reasonable arrangements have been made for the child

(3) A written agreement respecting child support that is filed in the court is enforceable under the act and the FMEP will enforce as if it was an order of the court

S. 149- Orders respecting child support

(1) 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) a minister under the employment and assistance act or the employment and assistance for persons with disabilities act

(2) An order may only be made against a stepparent if

(a) the stepparent has a duty to provide for the child, and

(e) the stepparent and the child’s parent are separated

(3) The making of an order against one person for the support of the 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

S.150- Determining child support

(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 (1) above a court may order support in an amount different from that required by child support guidelines if

(a) The parties consent under 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) Despite S.150(1) above, a court may order support in an amount different from that required by the child support guidelines if satisfied:(a) an agreement 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 guidelines would be inequitable on consideration of the agreement, order or special provisions.

S. 151- If parentage at issue

If the parentage of a child is at issue in a proceeding for an order respecting child support, the court may do one or both of the following: under FLA orders can be made in proceedings not just where child support is disputed:

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

(b) make an order for parentage tests to take place section 33(2)

S. 152- Changing, Suspending or terminating orders respecting

child support(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 the court must be satisfied at least one of the following exists:

(a) there is a change in circumstances as provided for in the child support guidelines

(b) evidence of a substantial nature which was not available during the previous hearing

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

Spousal Support

• New definition for FLA

• Adoption of divorce act language

• How agreements are treated

• Misconduct of spouse

• Right to review on retirement

• Reviews specifically provided for

Spouse

• Includes persons in a marriage like relationship who not only live together, but now includes if they have a child together even if do not live together

• Limitation period to commence support action now increased to two years post separation (from one)

Section 160

• Provides the framework for establishing spousal support obligations

• A duty to provide spousal support exists only where an entitlement to spousal support exists, taking into consideration the objectives of spousal support as. If a duty to provide spousal support exists, the amount and duration of spousal support is determined under s. 161

Section 161: The Objectives of spousal support

When deciding the entitlement to spousal support the following objectives must to be taken into consideration:

• To recognize any economic advantages or disadvantages to spouse as a result of the relationship or the breakdown of that relationship

• To apportion between spouses any financial consequences related to the care of their child(ren) beyond child support

Section 161: The Objectives of spousal support

• To relieve any economic hardship of the spouses as a result of the break up of the relationship between the spouses

• As far as practicable to promote the economic self sufficiency of each spouse within a reasonable period of time

Section 162

The amount and duration of spousal support, if applicable, must be determined when considering the conditions, ,means, needs and other considerations of each spouse, including the following:

(a) The length of time the spouses lived together

(b) The functions performed by the spouses during the period they lived together

(c) An agreement or order between the spouses relating to support of either spouse

S. 163- Agreement respecting spousal support

(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. A condition of spousal support that the spouse abstains from sexual relations after separation is not binding.

(2) Despite a spouse being entitled to spousal support in an agreement a spouse may agree to release the other spouse for liability for spousal support.

S. 163- Agreement respecting spousal support

(3) A written agreement respecting spousal support and filed with the court will be enforced as if an order of the court. Agreements may be filed for enforcement with either court Supreme or Provincial and there is no longer any distinction in their powers regarding enforcement.

S. 164- Setting aside agreements

First an agreement can be set aside if procedurally unfair:

(a) Failure to disclose relevant information

(b) One spouse took advantage of the other spouses vulnerability, need or distress

(c) Did not understand consequences of agreement

(d) Common law defenses

If agreement is procedurally fair then can only be set aside if agreement is significantly unfair (s.164.5) court will consider:

(a) passage of time since agreement made

(b) changes in conditions, needs of parties etc

(c) Intention to create certainty

(d) Degree to which spouses relied on and lived by the agreement

Court must not interfere unless order would be substantially different (s.164(4))

S. 166- Misconduct of spouse

The court must not consider any misconduct of a spouse

Except conduct that

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

(b) affects the ability to provide spousal support.

S. 167- Changing, suspending or terminating orders respecting

spousal support • On application, a court may change, suspend

or terminate an order respecting spousal support and may do prospectively or retroactively

• Before making such an order they must be satisfied at least one of the following exist and take it into consideration (the same factors applicable to changing, suspending or terminating child support)

S. 168- Reviews

Agreements or orders may provide for a review of spousal support and may provide for the review including:

(a) when it is to occur

(b) What form a review will take

(c) The grounds on which it will be permitted

(d) What matters to consider on a review

S. 169- Review on retirement

• If an agreement does not specifically address whether spousal support should be reviewed upon retirement

• Then upon either the payor or recipient starting to receive retirement benefits, the court may review support.

• The court does not have to first set the agreement aside before reviewing support.

S. 170- Matters that may be provided for in support orders

(a) that payments be made periodically, annually or otherwise (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) the payment of a lump sum be made directly or in trust.(d) that a charge be registered against property to secure payment

S. 170- Matters that may be provided for in support orders(e) that a person with life insurance designate his or her spouse or child as a beneficiary irrevocably or for the period designated by the court(f) that expenses arising from and incidental to pre-natal care of a mother or child or the birth of a child be paid.(g) that a duty to pay child support or spousal support continues after the death of the person having the duty to pay and be binding on the estate. [s.171]

S.171- In considering support obligation after death

Before making such an order the court must consider:

(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 support

(b) that the estate of the person paying support is sufficient to meet the need taking into account all the claims

(c) that no other practical means exist to meet the need.

S. 172-Separate support amounts required

If the court makes an order for both child support and spousal support the court must specify the amounts of support separately rather than as a single amount in order to avoid challenges with changing or enforcing orders

S. 173- Priority of Child Support

• 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.

• If spousal support is waived or reduced because of an inability to pay both the agreement or order must say so.

• If child support is reduced or cancelled that constitutes a change in circumstances that will allow the parties or the court to review spousal support.

S. 174-Reducing or cancelling arrears

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

In order to do this the court may consider:(a) the efforts of the person responsible to comply with the order(b) the reasons why the person cannot pay the arrears

owing(c) any circumstances the court considers relevant

The new act differs from the FRA in that the FLA provides for each separately retroactive variation and cancellation or reduction of arrears.