G. Provincial Legislation and Guidelines

AuthorJulien D. Payne - Marilyn A. Payne
Pages388-393

Page 388

Section 93(2) of the Family Relations Act (B.C.) empowers a court to deviate from the normal amount payable under the Federal Child Support Guidelines if the provisions in an order or written agreement respecting the financial obligations of the parties, or the division or transfer of their property, directly or indirectly benefit the child, or special provisions have otherwise been made for the benefit of the child, and the application of the Federal Child Support Guidelines would be inequitable in light of those provisions. Where a separation agreement includes no special provisions for the children other than to stipulate a different periodic amount of child support from that payable under the Guidelines, the requirements of section 93(2) of the Family Relations Act (B.C.) are not satisfied. Section 93(2) of the Family Relations Act (B.C.) does not permit a court to deviate from the Federal Child Support Guidelines simply because the children receive more support under a separation agreement than would be received under the Guidelines; nor can a plea of undue hardship be sustained under section 10 of the Guidelines simply on the basis that the application of the Guidelines will result in reducing the amount of periodic child support and consequentially the standard of living of the children.87A father’s transfer of his interest in the former matrimonial home to the mother will not be regarded as providing an indirect benefit to his biological child and stepchild so as to justify an order for reduced child support under section 93(2) of the Family Relations Act (B.C.), if no significant equity is involved that could provide an ongoing benefit to the children. Furthermore, Canada Pension Plan payments to the children of a disabled father are not to be credited to the father’s child support obligation as "special provisions" directly

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benefitting the children within the meaning of section 93(2) of the Family Relations Act (B.C.). Section 93(2) envisages some financial arrangement made by one or both of the parents for the continuing support of the children. Section 93(2) might also include provision for a child’s financial security made by a grandparent or other relative, or even by a "new" parent, but Canada Pension Plan benefits are paid automatically, by operation of statute, and not because of any specific action on the part of the disabled parent or any third party. Insofar as such payments are made to a stepchild, however, a court may conclude that they should be taken into account pursuant to section 5 of the Federal Child Support Guidelines in determining the stepfather’s obligation to support that child. In exercising its discretion under section 5 of the Guidelines, a court is not confined to the circumstances specified in section 5 of the Guidelines and section 93(2) of the Family Relations Act (B.C.).88A lump sum payment, which purports to constitute a final and binding resolution of child support rights and obligations, does not preclude a subsequent application for periodic support under the provincial child support guidelines.89The attendant circumstances may, nevertheless, entitle the court to deviate from the normal table amount of child support by ordering a lower amount on the basis that the lump sum settlement falls within section 93(2) of the Family Relations Act (B.C.), in that the lump sum constitutes a "special provision" for the benefit of the child that renders future payment of the full table amount inequitable. The court may also refuse to order retroactive child support except for a few months prior to its prospective order.90

A purportedly final consent order for lump sum support of an extramarital child made at the time of the child’s birth may be varied pursuant to section 37 of the Family Maintenance Act (N.S.) so as to provide future payment of the applicable table amount of child support under the provincial guidelines in addition to any allowed special or extraordinary expenses under section 7 of the Guidelines. Such variation requires proof of a change of circumstances since the granting of the order but this requirement is satisfied in the case of a pre-Guidelines order by the implementation of the provincial guidelines. It is not necessary to prove a "material change of circumstances" that satisfies the criteria defined in Wil-lick v. Willick,91whereby the change had to be such that, if known at the time, would likely have resulted in different terms. For a court to uphold a pre-Guidelines agreement or order that does not conform to the Guidelines, the requirements of section 10(3) of the Family Maintenance Act (N.S.) must be satisfied. Section 10(3) provides that a judge may order maintenance that differs from the Guidelines amount where (1) the order contains a special provision that directly or indirectly benefits the child and (2) the application of Guidelines would result in an amount of child maintenance that is inequitable. A lump sum order for child support may be perceived as making special provision that directly or indirectly benefits the child insofar as it replaces the need for ongoing child support, and inequity may ensue within the meaning of section 10(3) of the Family Maintenance Act (N.S.) if an order granted in the Guidelines amount would result in exposing the payor to duplicate amounts of child support. The special provision that has been made by way of the pre-Guidelines lump sum order must be judged in comparison with the amount that would be payable as

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a result of applying the Guidelines...

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