Can You Stop Paying Child Support If the Child Lives With You in BC?

Your child has moved in with you, and you are still paying child support to the other parent. It feels unfair, and stopping the payments can seem like the obvious fix.

In British Columbia, though, the order stays in force until it is formally changed. This article explains why, and how to ask the court to change it.

This article covers the law of British Columbia.

Why you cannot simply stop

Support obligations under an order continue until a court changes, suspends or terminates the order under s. 152 of the Family Law Act, and a payor cannot end it by their own decision. Every parent and guardian also has a duty to provide support for the child.

This can feel harsh when the child's living arrangements have already changed. The order does not adjust automatically, so it is wise to treat it as binding until a court or a valid agreement says otherwise. A final family order can also be challenged by appeal rather than variation.

What happens to unpaid amounts

Arrears under a maintenance order bear simple interest at the rate set by regulation, and the court cannot reduce or cancel arrears except as the Act allows. There is an exception: the court may reduce or cancel arrears when they are reduced or cancelled in a proceeding to change the order, so a payor who applies promptly may get a retroactive reduction, while one who waits risks arrears and interest continuing to accumulate.

Enforcement can be serious. Notices of attachment can be served so that money is deducted and remitted. When arrears reach $3,000 or more, after 30 days' notice the director can have ICBC cancel a driver's licence.

Other tools exist as well. A person served with a notice of attachment must deduct the required amount from money owed to the debtor and remit it to the director within 5 days. An employer may not dismiss, discipline or otherwise penalize an employee because of a notice of attachment. At a default hearing the court may order reporting, immediate payment or imprisonment of up to 30 days. If a debtor is in persistent arrears, a provincial enforcement service may apply to have a federal licence, including a passport, suspended or refused.

How the order can be changed

Under the Family Law Act, the court may change, suspend or terminate a child support order, prospectively or retroactively, if a change in circumstances as provided for in the child support guidelines has occurred since the order was made. Under the Federal Child Support Guidelines, for an amount that includes a table-based determination, that means any change that would result in a different child support order or any provision of it.

A child moving in with you is the kind of change that may matter, but the result depends on your facts and on the guidelines. The court can also change an order on substantial new evidence that was unavailable at the previous hearing.

Child support amounts are set under the child support guidelines, and the court may depart from them only in limited cases and must give reasons. If your order was made under the Divorce Act, a variation order may be retroactive or prospective. Whether a change in where the child lives leads to a different amount depends on the details, so it is worth confirming with a lawyer.

• If your order was made under the federal Divorce Act, variation is under Divorce Act s. 17, which requires a change of circumstances as provided for in the guidelines.
• If your order is a Family Law Act order in Provincial Court, you apply on Form 3 with the schedule for the order type, such as Schedule 4 for child support, and attach a copy of the order.
• A Family Maintenance Enforcement Act proceeding is not itself a way to change support.

Agreements between you and the other parent

A new written agreement that changes an earlier one revokes each changed part, and the unchanged remainder stays effective. A child support agreement is binding only if made after separation, or when the parties are about to separate and intend it to take effect on separation. Because child support is tied to the guidelines, which allow departures only in limited cases with reasons, have a lawyer review any informal deal.

A written agreement can be incorporated into an order by the court, and a family law agreement is binding on the parties whether or not it is filed with a court. Whether an informal exchange, such as text messages about reducing payments, has any legal effect depends on the facts, so it is worth confirming with a lawyer. How a particular agreement is treated depends on its wording and timing.

What to do next

• Keep paying the full amount until a court changes the order.
• Write down the date the child moved in and gather proof, such as school or medical records.
• Update your income information and ask the other parent for theirs.
• Keep a copy of your current order and any written agreement so they are ready to attach to an application.
• Speak with a family lawyer promptly about applying to change the order, because delay risks arrears and interest.

Frequently asked questions