B. Child Support under Provincial and Territorial Legislation

Author:Julien D. Payne - Marilyn A. Payne

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Provincial and territorial statutory support regimes in Canada generally stipulate that parents owe an obligation to support their children.40For example, section 31 of the Ontario Family Law Act41provides as follows:

Obligation of parent to support child

31. (1) Every parent has an obligation to provide support, in accordance with need, for his or her unmarried child who is a minor or is enrolled in a full-time program of education, to the extent that the parent is capable of doing so.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.42Provincial and territorial statutory support regimes usually provide broad definitions of "parent" or "child" for the purpose of defining the ambit

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of child support rights and obligations. Although these definitions take a variety of forms, it is common for child support obligations to be statutorily imposed on persons other than the natural parents where they stand in the place of parents to the children.43In British Columbia and Manitoba, the legal obligations of natural parents and those of step-parents or persons standing in the place of parents are regulated by statute so as to place the primary responsibility on the natural parents.44Provincial and territorial statutes usually empower their courts to order support for children over the age of majority in circumstances involving illness, disability, or post-secondary education.45Most jurisdictions in Canada have adopted provincial or territorial Child Support Guidelines that mirror the Federal Child Support Guidelines.46Little or no attention was paid to the possibility of a child instituting proceedings for support against both parents. Such a claim cannot be maintained under the Divorce Act and the Federal Child Support Guidelines because a child of the marriage has no standing to bring such an application under the Divorce Act.47

A similar bar to relief does not necessarily exist, however, under provincial and territorial legislation. In JDF v HMF,48Levy J, of the Nova Scotia Family Court, concluded that a child has standing to apply for support against both parents under the Maintenance and Custody Act. In such proceedings, the Nova Scotia Child Maintenance Guidelines49apply. Furthermore, there is nothing inherently inappropriate with a child recovering the full table amount of child support from each parent. Indeed, such concurrent...

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