British Columbia Family Law Blog

BC Child support guideline payments will change as Federal Amendments to the Canadian and BC Child Support Guidelines will come into effect on May 1, 2006 in British Columbia for BC child support payments and across Canada and will change to increase payment amounts for BC Child Support payments.

A two pronged definition for BC Child Support extraordinary expenses has also been added given disputes that have arisen over when these expenses should be paid on top of basic BC Child support guideline amounts.

First, in accordance with paragraph 7(1.1)(a), expenses are extraordinary if they "exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover." This is determined having regard to the income of the requesting spouse as well as any child support received.

Where paragraph 7(1.1)(a) does not apply (where the expense does not exceed the amount that the requesting spouse can reasonably cover), the second part of the definition, set out in paragraph 7(1.1)(b), applies. Paragraph 7(1.1)(b) directs courts to determine whether the expenses are extraordinary having regard to five factors, as follows:

• the amount of the expense in relation to the income of the spouse requesting the amount (including the child support amount);
• the nature and number of the educational programs and extracurricular activities;
• any special needs and talents of the child or children;
• the overall costs of the programs and activities; and
• any other similar factor that the court considers relevant.

Section 20 concerning non-residents has also been amended.  Section 20 has been amended to allow the court to reduce income for non-resident payors who pay higher taxes than residents of Canada.

FEDERAL GOVERNMENT UPDATES CHILD SUPPORT TABLE AMOUNTS TO REFLECT CHANGE TO INCOME TAX SINCE 1997

It was recommended that the Federal Child Support Tables should be amended every five years or earlier. They should also be amended on an ad hoc basis with the agreement of the provinces and territories if there is a significant change in taxation or other parameters.

The recalculated child support amounts use the 2004 federal, provincial and territorial tax parameters and structures (most recent available). When compared with the published tables, the updated tables show a substantial impact on some of the support amounts due to some notable changes to taxation regimes in most jurisdictions since 1996/1997.

We provide the following comparisons of old table amounts to May 1, 2006 amounts:

Children                   Income                              Old Amount                     New Amount
     1                         $50,000                                  $426                                 $465
     3                         $50,000                                  $911                                 $994
     1                         $75,000                                  $602                                 $698
     3                        $75,000                                 $1,272                              $1,459
     1                        $100,000                                 $761                                 $906
     3                        $100,000                               $1,592                              $1,875
     1                        $150,000                               $1,079                              $1,302
     3                        $150,000                               $2,228                              $2,668

As can be seen from the comparisons, the increases are substantial.  In some cases, the increase is higher than 20%.  One must question if the tax rate changes from 1997 to present justify such an increase and one must also consider that salaries will have likely also risen from 1997 to the present which will also lead to an increased child support payment.

To read more about the changes to the Guidelines, please see the attached link to the new Child Support Guideline amendments:

http://canadagazette.gc.ca/partI/2005/20051029/html/regle4-e.html

Family trusts are common estate and tax planning devices. There is often the mistaken assumption that a spouse’s interest in the capital from a trust set up by his or her parents or family member is not a family asset that will be shared with the other spouse although the income from that trust can be considered in determining spousal and child support. This is false. A spouse’s interest in a trust may in fact be a family asset providing it can be established that there is a common intention between both parties that the trust would provide for the family’s future financial security.

Well-written article in the Bozeman Daily Chronicle on strategies for divorced parents to work out a holiday visitation schedule that minimizes the stress on the children.  See the article here.

Thank you to the Sherman & Jeffries blog on Alabama family law for alerting me to the article.

There have been several significant court decisions for BC family law that have altered the perception as to whom should be considered a 'parent' under BC legislation. The traditional view of 'birth mother married to genetic father producing a then legitimate child' is becoming less the norm in our society. Beyond adoption, which has almost always had its own separate set of legal rules, we must include into the parental mix several new categories such as step-parents or similar loco parentis situations, same-sex couples, genetic parents and surrogate birth parents. This article will review two decisions of the British Columbia Supreme Court where the parent of a child was denied legal status by the BC Government.

What can I do to protect myself if I'm considering a British Columbia divorce?

A little pre-divorce planning can go a long way towards making the divorce itself run more smoothly as well as providing you with additional protection. Remember knowledge is power particularly in divorce proceedings. Doing your own homework can also save you money in legal fees. Here are some tips that you might want to download and keep handy.

People entering into a new or second marriage should consider very carefully the need for a prenuptial or marriage agreement. The purpose of a prenuptial or marriage agreement is to establish a clear and agreed upon frame work for resolution of issues between the parties that will arise from the marriage breakdown including:

• custody, guardianship and access of children;
• child support;
• spousal support;
• property division which can include the management of ownership or division of family assets or other property acquired both before and during the marriage;
• management of, ownership in, or division of family assets or other property after separation including who will keep what;
• management of affairs during marriage or upon death of one of the parties including the need to purchase life insurance and/or to prepare a valid will;
• the maintenance of the children both of the relationship and brought to the relationship during marriage and/or after separation.

Many BC family law practitioners and legal scholars believed that the decision of Moge v. Moge [1992] 3 S.C.R. 813 would forever change the landscape of awards of spousal support awards in Canada. Specifically, many thought that Moge meant that upon divorce the standard of living for each former spouse would be equalized, particularly after a long marriage, such that the spouse with the higher income would pay spousal support to the lower income spouse in an amount that would give them equal standard of living. The now famous quote from Moge is:

As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution (see) Rogerson "judicial" interpretation of the spousal and child support provisions of the Divorce Act, 1985, (Part 1) at pp.174-75.

Has that happened? Not really. Spousal support awards still tend to be unpredictable and some may argue - erratic. However, there has been a trend since Moge towards equalizing the standards of living of the former spouses.

Lorne MacLean, a BC family law lawyer and BC Divorce law lawyer feels strongly about educating the public about BC child custody under the BC child custody portions of the Family Relations Act and the BC child custody sections of the Divorce Act that also govern BC child custody.

Custody, guardianship and access rights/arrangements can come about by statute, agreement or Court order.

As we all know, the holidays can be a stressful time for everyone. For separated parents, that stress can get compounded to almost unmanageable levels. Here at The MacLean Family Law Group we have watched many parents struggle through this time of year, and we thought this year, we would assist these parents by setting out a few simple guidelines that may help to make the holidays smoother.

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