Consequences of Failing to Pay Child Support in British Columbia
Ensuring a child is cared for is the foremost guiding principle in family law.
The best interests of the child is a legal test used to decide what would best protect your child.
The BC Family Law Act states that the following factors must be considered when determining a child’s needs when making parenting arrangements:
- the child’s emotional health and well-being;
- the child’s views, unless it would be inappropriate to consider them;
- the child’s relationships with parents, guardians and other important people
- the history of care; and
- the impact of any family violence.
In any parenting arrangement, including child support payments, a child’s health and welfare must take precedence. Every child in this province deserves to be financially supported and if that support is withheld the legal consequences can be serious.
Family Law and the Child's Best Interests
Canadian parents have a legal obligation to provide for their children even if one parent has no contact with the child. That responsibility continues in B.C. even after parents decide to end their relationship (whether they are married or living common-law). Depending on the circumstances, one parent may be expected to pay child support or it can be split depending on income and how much time the child spends with each parent.
This support is used to cover such expenses as food, shelter, clothing and other needs. It is important to note that this financial support is the right of the child, not the receiving parent. The payor is responsible for support until their children are no longer defined as a “child of the marriage” under the Divorce Act. In B.C., that obligation typically continues until the child is 19 years old although it can extend beyond that age if the child is enrolled in post-secondary education or has a disability or serious illness.
While parents may want to set up their own child support agreement, it is important to remember to use the right terminology when preparing court orders and agreements so there is less risk of a misunderstanding and ensure that terms of support will be enforceable. This is particularly vital when it comes to special and extraordinary expenses under s.7 of the Federal Child Support Guidelines. Section 7 expenses are ordered by the court and can include dental, medical and other health-related expenses along with health insurance premiums. They can include support for extracurricular actives or even extraordinary expenses for primary or secondary school education. Consulting a B.C. family lawyer to ensure your agreement protects you and your children.
Using the BC Child Support Calculator
The Federal Child Support Guidelines are used to determine the amount one parent should pay to the other for child support. These legally binding guidelines apply to all separated parents, regardless of whether they were married, in a common-law relationship or never lived together.
To determine basic support payments parents can use the BC Child Support Calculator. This calculator is for informative purposes only and is not meant as a substitute for qualified advice from a B.C. family lawyer.
According to the Government of Canada, calculating income to determine child support can be complicated, especially if you are self-employed or your income fluctuates. Typically, a person can find their total income before deductions on Line 15000 of their T1 tax form. This figure would be used to calculate support.
However, Line 15000 only tells part of the story for self-employed workers when it comes to support calculations. Not only can income vary, but these workers can also deduct business expenses. This can make it challenging in determining the true income to be used to calculate support.
If you are self-employed and claiming business expenses you can be expected to prove that what you are claiming is reasonable. You must also show how the deductions were calculated. Parents have an obligation under the B.C. Family Law Act and the federal guidelines to provide complete and timely information which include tax returns and notices of assessment from the Canada Revenue Agency for each of the past three years.
Keep in mind that situations can change, calling for modifications in child support. This is where the B.C. Child Support Recalculation Service (CSRS) can help. The CSRS reviews child support orders and written agreements. This free service adjusts the amount of child support if income had changed so that parents do not have to return to court to have their child support amounts reviewed. The amount of support can be increased or reduced.
Legal Framework for Child Support Payments
Whether it is a support order from a court or a written agreement outlining your support obligations, the amount set out is what you are expected to pay without delay.
Regardless of your relationship with the other parent or even if they refuse to let you see your children, you must still honour your obligations. There are federal, provincial and territorial laws that set out a variety of tools to enforce support. To assist with the collection of unpaid child support payments, the federal government has enacted the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act. Withholding support could lead to:
- your wages being garnisheed;
- your assets being seized and sold;
- restrictions on your ability to register your automobile;
- denial or cancellation of your driver’s licence or passport;
- any money owed to you from the government such as tax returns, being garnisheed; and
- a restriction of your hunting and fishing licence.
If you fail to pay child support you could be brought to court where you can be fined or even jailed. A judge may also order you to pay all or a portion of your former partner’s legal fees if your case goes to court.
BC Family Maintenance Agency (BCFMA)
Each province and territory in Canada has a version of an enforcement program that helps payee parents collect the support owed to their children. This is a free service and you are not obligated to participate.
An enforcement program can collect monthly support owed as well as arrears and special expenses. In British Columbia, the BC Family Maintenance Agency (BCFMA), formerly known as the Family Maintenance Enforcement Program, can track outstanding support obligations and calculate the interest due. The BCFMA can also impose fines.
The agency can order the payor to attend court to explain why support payments have not been made. A judge can then decide whether the arrears are to be paid in installments or in full. The court can also order jail time if payments are not made.
A B.C. family lawyer can provide guidance on the agency and its role.
Legal Risks of Ignoring Child Support Payments
You may have a legitimate reason for not being able to meet your child support obligations but that does not mean you should simply neglect your responsibilities. Whether it is a change in income or family circumstances, is the payor’s responsibility to seek modifications when needed. In such cases, it is in your best interests to seek advice from a B.C. family lawyer.
When it comes to ignoring child support obligations and attempting to reduce or cancel out the debt, the Supreme Court of Canada (SCC) has made it clear that the protection of child support recipients is essential.
In Colucci v. Colucci, 2021 SCC 24 the SCC indicated that the cancellation of support debt should only happen in exceptional cases.
In Colucci, a man attempted to retroactively reduce his support obligations and rescind about $170,000 in arrears.
While acknowledging that a payor’s income can change, the Supreme Court ruled it is the duty of the person seeking a retroactive decrease to demonstrate a clear change in their financial circumstances.
The SCC found the man’s “failure to produce adequate evidence of his financial circumstances was fatal to any attempt to cancel his child support debt,” and that cancellation of child support debt can only happen in exceptional cases and as a last resort. Payment and enforcement of child support is the “rule,” the court stated in ordering the man to pay $170,000.
For Child Support Disputes: Contact Mills Family Law
Courts take a dim view of parents who fail to adequately support their children. Judges may even refuse to grant a divorce if they are not satisfied that reasonable financial arrangements have been made that are in a child’s best interest.
Federal and provincial governments have enacted laws to help parents collect the support their children are entitled to and the penalties for defaulting on payments can be severe.
Don’t take a chance with your children’s future. If you cannot honour your support payments, or if your ex-partner is not making support payments, contact Mills Family Law. Our team has extensive experience with changing child support agreements and child support orders. We can also help you get the support your child deserves.
