This article is under development. We are working to create a straightforward guide to support calculations, and you are welcome to review this draft, but you should not rely on it.
Child support law involves two categories of issues:
- entitlement to support, i.e. whether a particular child is entitled to support from a particular parent, guardian or stepparent; and
- calculating the amount of child support, which requires a determination of Guideline income.
This Guide covers issues relating to child support entitlement, including support for minor children and adult children as well as contributions from biological unmarried parents, step-parents and guardians.
In other words, this guide is focused on answering questions like the following:
- do I have to pay child support?
- does my ex have to pay me child support?
- can I claim child support without having been married?
- do I have to pay child support after my child turns 18 or 19?
- do I have to pay child support for my step-children?
- what happens if the person paying child support dies?
If you have questions about whether you are entitled to be paid child support, or are required to pay child support, read on.
Our separate guide to child support in Canada explains how to calculate the amount of child support that is payable if support is required to be paid. Our child support calculator can help you calculate the amount of support that is paid.
Child Support Laws in Canada
Entitlement to child support, meaning who has to pay and who gets to receive child support, is governed by two different laws: the Divorce Act (which applies to all of Canada), and the provincial or territorial Family Law Act (or equivalent) that applies in each province or territory. The federal Divorce Act is the same across Canada, but the provincial legislation varies depending on where you live. As a result, a child's entitlement to support from a particular person may be different depending on where you live in Canada.
Parents can agree to pay child support in a separation agreement, or a court can make an order for child support under the Divorce Act or provincial family law legislation (in most provinces this is called the Family Law Act).
The Federal Child Support Guidelines determine the amount of support (outside Quebec) whether support is agreed or ordered by the Court. If the parties agree to pay a lower amount than directed by the Guidelines, the agreement may not be enforceable and a court may order the higher Guideline amount to be paid.
Comparing the Divorce Act vs Provincial Family Law Acts
Although the Guidelines determine the amount of support, the Federal Divorce Act or applicable provincial family law statutes will determine who can apply for support and what children are eligible for support. The eligibility requirements can be different under each Act.
A parent can apply for child support under section 15(1) of the Divorce Act if and only if:
- the parents are or were previously legally married to each other; and
- one or more of the parents lived in the province continuously for at least one year immediately before starting the court action.
An action for support under the Divorce Act must be brought in the court of superior jurisdiction (e.g. B.C. Supreme Court, Superior Court of Justice of Ontario, or Court of Queen's Bench of Alberta) as opposed to a provincial court.
If these requirements aren't met, a court application may be brought in superior court or provincial court under the province's family law legislation, typically a statute called the Family Law Act that is specific to each province. The eligibility requirements for children can be different depending on whether the application is brought under the Divorce Act or the provincial Family Law Act, as explained below.
Eligibility for Support under the Divorce Act
The Divorce Act defines "children of the marriage" and a child must fall within this definition in order to be eligible for child support under the Divorce Act. The main criteria are in section 2(1) of the Divorce Act:
"child of the marriage" means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;
Another relevant definition is expressed in section 2(2) of the Divorce Act:
For the purposes of the definition "child of the marriage" in subsection (1), a child of two spouses or former spouses includes
(a) any child for whom they both stand in the place of parents; and
(b) any child of whom one is the parent and for whom the other stands in the place of a parent.
The "age of majority" is defined as follows:
"age of majority", in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age;
In other words, the age of majority is typically determined by the province the child ordinarily resides. The age of majority is 18 in Alberta, Manitoba, Ontario, Prince Edward Island, Quebec and Saskatchewan. It is 19 in British Columbia, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Nunavut and Yukon.
The combined effect of these definitions means:
- adoptive and natural parents may be required to pay child support
- step parents (who "stand in place of a parent") may be required to pay child support;
- child support is ordinarily payable until the child reaches the age of majority (18 or 19 depending on the province); and
- where the child continues to be financially dependent on their parents, child support may be payable even after the age of majority.
There is more to say about each of these issues - as set out in the remainder of this guide.
Eligibility for Support under the Family Law Act or Equivalent
Provincial family law statutes apply different criteria to determine eligibility to pay or claim child support. These criteria vary from province to province. You can review the child support eligibility criteria applicable to your province in our province-specific guides:
- Child Support in Alberta
- Child Support in British Columbia
- Child Support in Manitoba
- Child Support in New Brunswick
- Child Support in Newfoundland and Labrador
- Child Support in the Northwest Territories
- Child Support in Nova Scotia
- Child Support in Nunavut
- Child Support in Ontario
- Child Support in Prince Edward Island
- Child Support in Quebec
- Child Support in Saskatchewan
- Child Support in Yukon
In general, the following points apply to provincial family law statutes in all Canadian jurisdictions:
- A child that reaches the age of majority and unilaterally ceases a meaningful relationship with the paying parent may no longer be entitled to support;
- Child support may stop before the age of majority where the child leaves home or marries;
- Child support may continue after the age of majority if the child is unable to withdraw from the care of their parents;
- Step-parents and guardians may be required to pay child support, but the application must be brought within applicable time limits;
- Multiple parents may be obliged to pay support for a child at the same time; and
- Parents are required to pay child support regardless of their relationship with each other (married, common law, independent, etc).
These issues can be relatively complex. Review our province-specific child support guides (see above) or the sections below addressing child support over the age of majority, step-parent support, and a child's claim for support for more information.
Child Support for Adult Children
Children over the age of majority (18 or 19 depending on your province) may or may not be eligible for continued child support, and the amount of support payable may be varied from the Guideline table amount. This section explains some of the issues that can arise and how to deal with them in the Divorcepath child support calculator.
You should know that these legal issues can be more complex than set out in this brief summary. As the law in this area is not straightforward we recommend that you seek family law advice specific to your situation if you are navigating a child support claim involving adult children.
Eligibility for Child Support for Adult Children
The criteria for continued child support for adult children are somewhat different under the Federal Divorce Act and the provincial Family Law Acts.
Under the Divorce Act, adult children can fall within the definition of "children of the marriage" and be entitled to child support provided they are "under their charge", i.e. dependent on their parents, and are "unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life".
Where the child is ill or disabled the analysis can be relatively straightforward, at least until the child beigns to receive direct support or pension from government sources. Some cases have held that the obligation of support under the Divorce Act ends where an adult child starts to receive a government disability pension.
Where the child is unable to become independent because of "other cause", such as a student's continuing education, the court will assess a number of factors in considering whether support should continue.
Courts will usually apply the factors from Farden v Farden, [1993] B.C.J. No. 1315 (B.C. Master) when considering whether a child is eligible for support in a postgraduate program. The "Farden Factors" are:
- Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;
- Whether or not the child has applied for or is eligible for student loans or other financial assistance;
- The career plans of the child, i.e. whether the child has some reasonable and appropriate plan or simply going to college because there is nothing better to do;
- The ability of the child to contribute to his own support through part-time employment;
- The age of the child;
- The child's past academic performance, whether the child is demonstrating success in the chosen course of studies;
- What plans the parents made for the education of the children particularly where those plans were made during cohabitation; and
- At least in the case of a mature child who has reached the age of majority, whether or not the child is unilaterally terminated of relationship from the parent from whom support is sought.
In most cases the court will find a child is entitled to support for their first post-secondary degree or diploma, provided the child maintains full-time enrolment ("full-time'' is usually defined by the academic institution). Depending on the parents' resources additional programmes of study after a first degree may also be eligible for child support, particularly where the parents expected the child to pursue advanced education during their relationship.
Varying the Amount of Child Support for Adult Children
The amount of support for adult children can be varied from the Guideline table amount per section 3(2) of the Guidelines if the court considers that to be appropriate, accounting for the relevant circumstances including the child's needs and the financial circumstances of the child and parents. For example, in Geran v Geran, 2011 SKCA 55 the Saskatchewan Court of Appeal said the following:
63 Unfortunately, it appears that Hagen v. Rankin was not drawn to Justice McIntyre's attention. It seems to have been overlooked by counsel and therefore overlooked by him. This is unfortunate because that case stands for the proposition that, where a healthy and able-bodied adult child is living at home with one of the parents, is attending university, and is earning a substantial income, the amount of child support the other parent is obliged to pay should generally be determined on application of subsection 3(2)(b) of the Guidelines rather than 3(2)(a). There are good reasons for this.
64 As we have seen, subsection 3(2)(a) falls to be applied "as if the child were under the age of majority". Why, it might be asked, should a child who is 19 to 21 years old, let us say, and earning a substantial income, be treated as though he or she were 16 or 17 years old and earning no income? To ask the question is not to answer it, but to ask it serves to put the matter into perspective.
The court went on to take into consideration the fact that a child earning a substantial income displaces one of the core presumptions of the child support guidelines, which is that children have no income or resources of their own and therefore require support. In these cases it is much more likely that the court will order a varied amount of support.
Paying Support Directly to Adult Children
A court may order that child support be paid directly to the child under the Divorce Act or provincial statute. Payments will usually be made to the parent, but direct payment may be ordered or agreed where the child is living away from home, or in circumstances where there is a highly adversarial relationship between the parents, or where other circumstances indicate payment directly to the child is warranted.
For example, see Colford v. Colford where the court concluded a child's mother had influenced her son after separation in order to alienate him from the payor father. After the child left home to attend post-secondary the court ordered the support payments be made directly to the post-secondary institution.
When considering an order for direct payment to children, the court will take into consideration the extent to which such payments may affect a child's entitlement to student loans: Sherlock v Sherlock.
Calculating support for Adult Children in the Divorcepath Calculator
To calculate the normal table amount of child support for an adult child, simply enter all inputs for the child and calculate your results. Where the court has ordered a different amount of child support for an adult child than the ordinary table amount, you can account for this by overriding child support as follows.
In the Divorcepath child support calculator you can enter a different amount for table child support for a child by using the "Agreed Child Support" option in the "Options" menu for your calculation:
[show option menu]
Entering an override amount for child support will allow you to compare the agreed or court-ordered amount of child support with the standard table amount, and to generate a monthly budget, special expenses calculation, and net income breakdown based on the actual amount of support that is paid.
[shot showing comparison]
For example, for an adult child who is not entitled to section 3 support because they do not live with either parent, but for whom parents are still contributing to special expenses such as tuition, enter $0 for agreed child support and then enter all special expenses in order to calculate section 7 child support for the expenses without any section 3 basic child support.
Step-Parents and Child Support
Under provincial family law legislation, stepparents may fall within the definition of "parent" and be required to pay child support as though they were biological or adoptive parents. This can mean that in some cases multiple parents may be responsible to pay support for a child at the same time. There are a number of cases in which courts have ordered support to be paid by step-parent even though the biological parent was already paying support. However, this is not always the result. In other cases, the courts have concluded that a stepparent did not have to pay support because of various factors including:
- the short duration of the marriage;
- a breakdown in the stepparent's relationship with the child;
- the "modest" income of the stepparent;
- the support paid by the biological parent; and
- the applicant parent's own resources.
See for example H.J.H. v. N.H.H., 2004 BCSC 179.
Some provincial family law statutes clarify that the stepparents' duty to pay support is conditional, and secondary to the obligation of the child's actual parents and guardians. Review our province-specific guides for more information. The effect of making step-parent's support secondary to the primary parent is that most courts will consider the support obligations of primary parents or guardians and set-off or reduce the amount of support paid by a step-parent accordingly.
In summary, step-parents will often be required to pay support, but in a lesser amount that accounts for the support already paid by other parents or guardians.
Calculating Step-Parent Child Support in the Divorcepath Calculator
Where step parents are required to pay the normal table amount of child support, simply enter their information into the calculator as though they were a biological parent to calculate the amount of support to be paid.
Where step-parents will pay a different amount of support, you can override table child support calculation by entering an agreed amount for support in the "Options" section of the calculator. The calculator will then compare the "agreed" override amount of support with the standard table amount, and will use the override amount to calculate spousal support and in the monthly budget and net income reports.
Details for how to do this are described above in relation to calculating support for adult children.
New Partners and Child Support
While step-parents can be required to pay child support if their relationship with the child's parent ends, as a general rule, the income of new partners is not taken into consideration in determining the amount of child support to be paid by the child's parents.
In other words, the fact that the recipient enters into a relationship with a new partner does not normally reduce the amount of child support that must be paid. Similarly, if the paying parent remarries or enters a new common law relationship, the new partner's income does not increase the amount of child support that must be paid. The new partner does not become subject to the child support obligation if the parent dies, and the obligation to pay child support does not get transferred to the new partner if the paying parent stops paying. Only if the relationship ends and the new partner potentially becomes a step-parent for the purpose of determining support is the new partner's income directly relevant to the calculation of basic child support.
That said, there are some situations in which a new partner's income can be relevant:
- where the payor claims that paying the base amount of child support under the Guidelines would cause "undue hardship", the court will consider the standard of living in each parent's household, including the total income and expenses of each household, accounting for a new partner's income and expenses. This does not mean the new parent will have to pay support, but that the circumstances of both households will be considered in relation to the undue hardship claim.
- For parents who earn more than $150,000 per year, the court has discretion to consider whether the Guideline amount is fair, and may take a new partner's income (for better or worse) into consideration in determining whether the amount of support should be reduced below the Guideline amount. Note that this does not mean the new partner would ever be required to pay support, simply that the new partners' income can be relevant to determining the amount of support the paying parent should be required to pay.
- When apportioning special expenses under section 7 of the Guidelines (as addressed in more detail below), the court can consider the "means of the spouses" including the income of a parent's new partner. Once again, the new parent is not required to contribute to the expense, but their income can be considered when determining each parent's share of the expense.
To summarize, the courts recognize that parents will move on and enter new relationships after separating. It is public policy to encourage this and accordingly the income of new partners is not factored into the calculation of basic child support. However, in cases where the circumstances and lifestyles of both parents must be compared, the comparison will typically require consideration of the income or lack of income earned by a new partner, in order to determine the proper amount of support to be paid by the parent. This does not mean the new partner is required to pay support, and there are no reported decisions in which a parent's obligation to pay support has been transferred to, or inherited by, a new partner.
The only situation in which a new partner may be required to pay child support is if their relationship with the child's parent ends, in which case they may be required to pay child support as a stepparent, as discussed in the previous section.
A Child's Claim for Child Support
A child that is eligible for child support may be able to apply to enforce an existing child support order that is not being paid if the recipient parent does not takes enforcement steps. If there is no existing child support order, it may also be possible for the child to apply for child support. This type of application can be quite complex. Consult a family lawyer or review our province-specific child support guides for more information.
A child may also be able to apply for child support if they leave home due to intolerable circumstances or other justifiable reasons. These claims are quite legally complex and we recommend that children considering such a claim seek legal advice.
Children are not typically entitled to support if their parents are together and the child lives with them, as the law presumes the child is being provided for.
Life Insurance, Security Interests and Child Support
Provincial family law legislation in some provinces gives the court jurisdiction to order that child support obligations be 'secured' through various means. For example, under s. 170 of the B.C. Family Law Act, the court can make the following orders:
- that a security interest be registered against property in relation to child support;
- that the payor maintain life insurance and specify the other parent or child as a beneficiary of the policy to secure future support;
- that child support be paid from an estate in the event of the payor's death.
These orders will require the court to first consider whether security, insurance, or payment from the estate is necessary to provide for the child and whether the estate will have sufficient resources to pay support.
Some provinces also allow a recipient of support to register a security interest against property owned by the payor of support (with or without arrears). See for example the Family Maintenance Enforcement Act, section 26.
You can calculate the amount of life insurance or other security required to secure future child support payments in Divorcepath. The insurance calculation is in the results section under the heading "Child Support Calculation Details":
For more information on how to calculate the life insurance amount, log into the app and start a chat or email us. We'd be happy to walk you through it.
Child Support and the Death of the Payor
As noted above, child support obligations will not transfer to an heir or new partner of a child support payor in the event of the payor's death. However, an estate can be liable for child support in most provinces under provincial family law legislation. The recipient may apply for continued support, or the original support order may specify that support continues in the event of the payor's death, to be paid from the estate.
Where the application for continued support is made after the payor's death, the deceased's personal representative or litigation representative (typically the trustee, depending on the province) can respond to the application on behalf of the payor.
