The information provided in this brochure is of a general nature and is not intended to be taken as the giving of an opinion by the law firm of Murphy Collette Murphy or any of its members. Specific advice should be sought on particular situations from your lawyer. © 1994 -2007 Henry J. Murphy

---

The enforcement of child and spousal support is a very important issue on separation, both for the paying spouse and for the spouse receiving support, but first you need to know that the obligation to pay support is not automatic on separation but has to be established.

Here are answers to some questions you are asking yourself.

Support Generally

A child or a dependant spouse, or, in some instances, a common-law partner may be able to receive support. Such payments are generally claimed when a couple separates. Where a couple is separated, the obligation to provide child and spousal support is governed by the Family Services Act, a statute of the provincial government. Once a couple has filed for divorce, the obligation to provide support comes under the Divorce Act, which is federal legislation. However, the provisions in the two statutes dealing with support are similarly drafted and therefore most questions on support issues have the same answer regardless of which regime you fall under.

In many cases spouses or parents can agree on the amount of support to be paid. To be legal, such an agreement must be in writing, signed by both parties and witnessed. If either party wishes, a duplicate original of the document can be filed with the court and it will be enforced the same as a court order.

However, the case often arises that spouses or partners are unable to agree on the level of support to be paid. If this is the case, than both parties have recourse to the courts through a process known as an Application. A Judge of the Family Division of the Court of Queen's Bench will then determine the level of support to be paid. The judge will review Affidavit evidence filed by both parties and hear any verbal evidence that is presented. On this evidence, the judge will make a court order fixing the amount of support to be paid or dismiss the Application if he or she determines that no support should be paid.

Both the Divorce Act and the Family Services Act allow either party to a support order to apply to the court to have the order changed if there has been a material change in either party's circumstances. Such a change might include an increase or decrease in either party's income or a significant increase in child care expenses. The court has broad powers to change the order, including the right to increase or reduce the payments, and to suspend or cancel any payments which are in arrears.

People also often wonder what effect remarriage and beginning a new family have on their support obligations to their first family. You always have a duty to support your first family regardless of any new obligations. If you feel that support payments seriously affect your ability to provide for your new family, you may apply to have the support order varied. However, you may not always be successful in having your support obligations varied.

Child Support

Both parents have an obligation to financially support their children according to each parent's financial capability. This duty arises regardless of the parents' marital status. Usually it is the parent with custody of the children who receives child support payments from the other parent. These payments are not for the benefit of the parent, but rather are to be used for the children's financial needs.

Parents often ask how long the duty to provide child support continues. Generally, the duty to provide child support lasts until the child reaches 19 years of age. Under the provincial statute the order may last longer if the child is enrolled full-time in an educational program or is disabled; while under new amendments to the Divorce Act, parents are now obligated to continue paying support under these circumstances. A child of any age who gets married is not entitled to support, nor is a child over 16 who withdraws from parental control.

The amount of child support to be paid is based upon the financial need of the child and the ability of the parent to pay. We now have an easy guide for determining what this level is in the form of the newly enacted Federal Child Support Guidelines. Under certain circumstances a court may choose to increase or decrease the level of support to be paid. If a judge chooses to do so, he or she must give clear written reasons for such a decision. Please see our separate brochure which has reproduced this table and the circumstances which may warrant deviating from the prescribed support payments for more detailed information.

Spousal Support

The level of spousal support that shall be paid to a dependent spouse is also determined by need and ability to pay. Factors which may be taken into consideration are the couple's former standard of living, how long they lived together, if child care responsibilities effected one spouses's earning capacity and so on. A spousal support order can be given in the form of a one-time lump sum payment, time limited support or indefinite support.

Spousal support that is limited for a specified time is generally intended to give the dependent spouse time to become financially independent. A spouse or partner has a duty to provide for him or herself if possible. A spouse is only entitled to spousal support if he or she is unable to be self-supporting. This means that any former spouse who is capable of working is expected to do so. Spousal support is ordered only if the person cannot earn enough money to live on, or is unable to work for some reason.

Besides married couples, the duty to provide support may arise where an unmarried couple has lived together continuously for at least three years. In such circumstances the duty to pay spousal support only arises under the Family Services Act if one partner has been substantially dependent on the other for support. This test is much more stringent then the test for spousal support in the circumstances of a married couple.

© 1996, 2001, 2007 Henry J. Murphy