Separation or divorce is difficult and emotional. It is even worse when the other parent doesn’t comply with their duty to support their children by paying child support.
The court can make an order requiring a parent to pay child support, and some enforcement mechanisms can be used to obtain payment. This article looks at some of the options, along with a recent decision of the Supreme Court of British Columbia in which a mother sought child support and certain guarantees that it would be paid.
Applying to the court for payment of child support
Often, it may be possible to agree on the payment of child support with the other parent because the Federal Child Support Guidelines (Guidelines) govern most child support calculations, and they include tables that enable the amount of child support to be determined. Each province and territory has a table; the amount payable is based on the paying parent’s income and the number of children they support.
If an agreement isn’t possible, a parent can approach the court for an order requiring the other parent to pay child support. There are certain ways to enforce the order.
The child support order can be registered with the Family Maintenance Enforcement Program.
If you live in British Columbia, you can enrol a child support order in the Family Maintenance Enforcement Program (FMEP). The FMEP receives payments from the paying parent and passes the money to the recipient. If the paying parent does not make payments voluntarily, the FMEP takes steps to collect the outstanding payments. These can include intercepting federal sources of income and attaching wages or bank accounts.
It may be possible to obtain a lump sum payment or have the order secured.
The Guidelines allow the court to require child support to be paid as a lump sum instead of the regular method of periodic payments. They also allow the court to order security for payment of child support. For example, if there is a real risk that the paying parent will not pay child support, the court may order that the total sum of support payable be paid to the Director of Maintenance Enforcement as security.
Mother applied to the court seeking child support.
In Bennett v Bennett, the parties purchased a house together in Surrey in 2009, were married in 2012, and after separating in 2016, had a child born in 2017. The house was sold by court order in 2021, and the proceeds ofthe the sale were placed in trust.
The mother started family law proceedings, seeking a divorce, sole decision-making responsibility, child support and an unequal distribution in her favour of the proceeds of the sale of the family home.
Mother claimed father would not voluntarily pay child support
In 2021, the father was ordered to pay retroactive child support, as well as ongoing child support. The arrears were paid out of the sale proceeds of the family home, but no ongoing child support payments have been made.
The mother argued that the father would not voluntarily pay child support and argued that a lump sum payment should be ordered.
The father argued that he was unemployed and should therefore be excused. He is qualified as a power engineer and earned almost $75,000 in 2017. He lost his job during the pandemic because he refused to wear a mask. He told the court that he sold food and that he would be able to go back to work if the vaccine mandate was removed.
Court imputed an income to the father for the purpose of calculating child support
Justice Baker said that the father’s evidence was:
“exceedingly vague and was not adequate to allow me to conclude he has made a good faith effort to obtain regular employment to provide support for his child, as he is obligated to do under the law.”
Her Honour was not satisfied that the father’s current income was representative of his ability to earn and considered that the father simply chose to pursue a way of life that did not produce an income. Her Honour imputed an income to the father of $45,000. His annual average income over 2017-2019 was almost $57,000, and the court reduced this to reflect the fact he had been out of work for several years. Based on this imputed income, the father is obligated to pay monthly support of $423.
Court also ordered security for the payment of child support
Justice Baker was also prepared to order security for the payment of child support, given the father’s history of not paying support, the fact he was wilfully unemployed, and his whereabouts were unknown.
Her Honour ordered that the total sum of approximately $68,000, representing the monthly payments from the trial date until the child turns 19, be paid to the Director of Maintenance Enforcement. If the father doesn’t pay child support, the mother will be paid this sum. Any funds remaining when the child turns 19 are to be returned to the father.
Her Honour ordered the $68,000 to be paid from the father’s proceeds from selling the family home.
Contact Meridian Law Group in Vancouver for Experienced Child Support Advice
Meridian Law Group provides trustworthy advice and representation in child support matters in a variety of legal forums, including mediation, arbitration, and litigation. The firm’s family and divorce lawyers develop creative solutions to help clients resolve disputes as efficiently and amicably as possible. We can also approach the court for a child support order and help you to get it enforced.
For over 30 years, the lawyers of Meridian Law Group have navigated clients through issues arising from a separation or divorce. Located across from the courthouse in downtown Vancouver, the firm represents clients in Vancouver and throughout British Columbia, including West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. To speak with an experienced family lawyer or arrange a confidential consultation, please call (604) 687-2277 or reach out online.
