Agreement respecting spousal support

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FAMILY LAW ACT
Child Support and
Spousal Support
Laurence S. Klass
Child Support
Definitions: [S. 146]
• For the purposes of support the definition of a
child remains the same as in the current
regulations.
• The FLA draws a distinction between Guardians
who are parents and those who are not for child
support purposes.
• The term Guardian is a product of the FLA.
• The FLA sets out when support for children
under the age of 19 does not have to be paid.
Definitions: [S. 146]
• The act does not include a guardian who
is not a parent and whose only parental
responsibility is in respect of the child’s
legal and financial interests.
• Parent includes a stepparent if the
stepparent has a duty to provide for the
child, stepparents must be separated to be
liable.
[S. 147] Duty to provide support
for child
(1) Each parent and guardian of a child has a duty
to provide support for the child unless the child:
(a) is a spouse, or
(b) is under 19 years of age and has voluntarily
withdrawn from his or her parents or guardians
charge unless withdrawal due to family violence or
intolerable home conditions. (this is new under the
act)
(2) If a guardian who is not the child’s parent has a
duty to provide support this is secondary to that
of the child’s parents
(3) A Childs stepparent doesn’t have a duty to
provide support for the child unless:
(a) the stepparent contributed to the support of the
child for at least one year, and
(b) a proceeding for an order under this part against the
stepparent is started within one year of the date that the
stepparent last provided support
(i) if a stepparent has a duty to provide support that
duty is secondary to that of the child’s parents and
guardians and extends only as appropriate
considering standard of living during relationship
and length of time child lived with step-parent
S.148- Agreements respecting
child support
(1) An agreement respecting child support only
binding if agreement is made
(c) after separation, or
(d) when the parties are about to separate, for the
purpose of being effective on separation
(2) Agreement may depart from guidelines if court
satisfied reasonable arrangements have been
made for the child
(3) A written agreement respecting child support
that is filed in the court is enforceable under
the act and the FMEP will enforce as if it was
an order of the court
S. 149- Orders respecting child
support
(1) An application may be made by
(a) a child’s parent or guardian
(b) the child or a person acting on behalf of the
child, or
(c) a minister under the employment and
assistance act or the employment and
assistance for persons with disabilities act
(2) An order may only be made against a
stepparent if
(a) the stepparent has a duty to provide for the child,
and
(e) the stepparent and the child’s parent are separated
(3) The making of an order against one person for
the support of the child does not affect the
liability of, or prevent the making of an order,
against, any other person responsible for the
support of the child
S.150- Determining child support
(1) If a court makes an order respecting child
support, the amount of child support must be
determined in accordance with the child
support guidelines.
(2) Despite (1) above a court may order support in
an amount different from that required by child
support guidelines if
(a) The parties consent under or have an agreement
respecting child support, and
(b) The court is satisfied that reasonable arrangements
have been made for the support of the child
(3) Despite S.150(1) above, a court may
order support in an amount different from
that required by the child support
guidelines if satisfied:
(a) an agreement other than an agreement
respecting child support benefits the child
directly or indirectly, or that special provisions
have otherwise been made for the benefit of
the child, and
(b) applying the guidelines would be
inequitable on consideration of the agreement,
order or special provisions.
S. 151- If parentage at issue
If the parentage of a child is at issue in a
proceeding for an order respecting child support,
the court may do one or both of the following:
under FLA orders can be made in proceedings not
just where child support is disputed:
(a) make an order respecting the child’s parentage in
accordance with that section
(b) make an order for parentage tests to take place
section 33(2)
S. 152- Changing, Suspending or
terminating orders respecting
child support
(1) On application, a court may change, suspend
or terminate an order respecting child support,
and may do so prospectively or retroactively.
(2) Before making an order the court must be
satisfied at least one of the following exists:
(a) there is a change in circumstances as provided for
in the child support guidelines
(b) evidence of a substantial nature which was not
available during the previous hearing
(c) evidence of a lack of financial disclosure by one
party was discovered after the last order was made.
Spousal Support
•
•
•
•
•
•
New definition for FLA
Adoption of divorce act language
How agreements are treated
Misconduct of spouse
Right to review on retirement
Reviews specifically provided for
Spouse
• Includes persons in a marriage like
relationship who not only live together, but
now includes if they have a child together
even if do not live together
• Limitation period to commence support
action now increased to two years post
separation (from one)
Section 160
• Provides the framework for establishing
spousal support obligations
• A duty to provide spousal support exists
only where an entitlement to spousal
support exists, taking into consideration
the objectives of spousal support as. If a
duty to provide spousal support exists, the
amount and duration of spousal support is
determined under s. 161
Section 161: The Objectives
of spousal support
When deciding the entitlement to spousal
support the following objectives must to be taken
into consideration:
• To recognize any economic advantages or
disadvantages to spouse as a result of the
relationship or the breakdown of that relationship
• To apportion between spouses any financial
consequences related to the care of their
child(ren) beyond child support
Section 161: The Objectives
of spousal support
• To relieve any economic hardship of the
spouses as a result of the break up of the
relationship between the spouses
• As far as practicable to promote the
economic self sufficiency of each spouse
within a reasonable period of time
Section 162
The amount and duration of spousal support, if
applicable, must be determined when
considering the conditions, ,means, needs and
other considerations of each spouse, including
the following:
(a) The length of time the spouses lived together
(b) The functions performed by the spouses
during the period they lived together
(c) An agreement or order between the spouses
relating to support of either spouse
S. 163- Agreement respecting
spousal support
(1) An agreement respecting spousal support may
provide for the circumstances under which
spousal support will change or end, including if
a spouse lives with another person or enters a
relationship with another spouse. A condition of
spousal support that the spouse abstains from
sexual relations after separation is not binding.
(2) Despite a spouse being entitled to spousal
support in an agreement a spouse may agree
to release the other spouse for liability for
spousal support.
S. 163- Agreement respecting
spousal support
(3) A written agreement respecting spousal
support and filed with the court will be enforced
as if an order of the court. Agreements may be
filed for enforcement with either court Supreme
or Provincial and there is no longer any
distinction in their powers regarding
enforcement.
S. 164- Setting aside agreements
First an agreement can be set aside if
procedurally unfair:
(a) Failure to disclose relevant information
(b) One spouse took advantage of the other spouses
vulnerability, need or distress
(c) Did not understand consequences of agreement
(d) Common law defenses
If agreement is procedurally fair then can only
be set aside if agreement is significantly unfair
(s.164.5) court will consider:
(a) passage of time since agreement made
(b) changes in conditions, needs of parties etc
(c) Intention to create certainty
(d) Degree to which spouses relied on and lived by
the agreement
Court must not interfere unless order would be
substantially different (s.164(4))
S. 166- Misconduct of spouse
The court must not consider any
misconduct of a spouse
Except conduct that
(a) causes, prolongs or aggravates the need
for spousal support, or
(b) affects the ability to provide spousal
support.
S. 167- Changing, suspending or
terminating orders respecting
spousal support
• On application, a court may change, suspend
or terminate an order respecting spousal
support and may do prospectively or
retroactively
• Before making such an order they must be
satisfied at least one of the following exist
and take it into consideration (the same
factors applicable to changing, suspending or
terminating child support)
S. 168- Reviews
Agreements or orders may provide for a
review of spousal support and may
provide for the review including:
(a) when it is to occur
(b) What form a review will take
(c) The grounds on which it will be permitted
(d) What matters to consider on a review
S. 169- Review on retirement
• If an agreement does not specifically
address whether spousal support should
be reviewed upon retirement
• Then upon either the payor or recipient
starting to receive retirement benefits, the
court may review support.
• The court does not have to first set the
agreement aside before reviewing support.
S. 170- Matters that may be
provided for in support orders
(a) that payments be made periodically,
annually or otherwise
(b) that child support or spousal support
be paid respecting any period of time
before the date the application for the
order is made
(c) the payment of a lump sum be made
directly or in trust.
(d) that a charge be registered against
property to secure payment
S. 170- Matters that may be
provided for in support orders
(e) that a person with life insurance
designate his or her spouse or child as a
beneficiary irrevocably or for the period
designated by the court
(f) that expenses arising from and incidental
to pre-natal care of a mother or child or the
birth of a child be paid.
(g) that a duty to pay child support or
spousal support continues after the death of
the person having the duty to pay and be
binding on the estate. [s.171]
S.171- In considering support
obligation after death
Before making such an order the court must
consider:
(a) that the person receiving child support or spousal
support has a significant need for support that is
likely to continue past the death of the person
paying support
(b) that the estate of the person paying support is
sufficient to meet the need taking into account all
the claims
(c) that no other practical means exist to meet the
need.
S. 172-Separate support
amounts required
If the court makes an order for both child
support and spousal support the court
must specify the amounts of support
separately rather than as a single amount
in order to avoid challenges with changing
or enforcing orders
S. 173- Priority of Child Support
• In making an agreement or order respecting
spousal support, the parties to the agreement
and the court must give priority to any duty to
pay child support.
• If spousal support is waived or reduced because
of an inability to pay both the agreement or order
must say so.
• If child support is reduced or cancelled that
constitutes a change in circumstances that will
allow the parties or the court to review spousal
support.
S. 174-Reducing or cancelling
arrears
On application a court may reduce or cancel arrears
owing under an agreement or order respecting child
support if satisfied that it would be grossly unfair not to
reduce or cancel the arrears.
In order to do this the court may consider:
(a) the efforts of the person responsible to comply with the
order
(b) the reasons why the person cannot pay the arrears owing
(c) any circumstances the court considers relevant
The new act differs from the FRA in that the FLA
provides for each separately retroactive variation and
cancellation or reduction of arrears.
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