Child & Spousal Support

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WHICH ACTS GOVERN SUPPORT PAYMENTS?

Married persons who are seeking child and/or spousal support as part of a divorce application apply under the Canada Divorce Act. 

 

Non-married parents, married persons who are separated but not getting a divorce, and adult interdependent partners (often called “common law partners”, see below for the definition) all seek child and/or partner support under the Alberta Family Law Act.

 

WHO ARE ADULT INTERDEPENDENT PARTNERS?

In Alberta, under the Adult Interdependent Relationship Act, adults are in an interdependent relationship other than marriage when they:

 

    a.       Have an agreement to become interdependent partners; or

          b.       Have lived together in a relationship of interdependence for

                   at least three years; or

          c.       Have lived together in a relationship of interdependence of

                   some permanence (which could be for less than three years)

                   and have a child from the relationship by birth or adoption.

 

A relationship of interdependence exists when two people share one another’s lives, are emotionally committed, and work together in sharing domestic and economic responsibilities.

 

Adults in an interdependent relationship are able to apply through Provincial Court, or Court of Queen’s Bench, for child and partner support under the Family Law Act.  Please also see our ‘Parenting Time’ and ‘Common-Law Property’ pamphlets for other related information.

 

WHAT IS SUPPORT?

Support is a term that refers to the money that is paid by one spouse/parent/partner towards financially supporting his or her former spouse/partner and/or children.  Parents are under a legal obligation to provide for the needs of their children.  Support is used to pay for such things as adequate food, shelter, schooling, clothing and medical treatment.  However, depending on the circumstances, support may include other items.  Spousal support (money paid to support a spouse) is also sometimes referred to as alimony.

 

Support is usually a fixed sum paid on a regular basis every month.  It may also be paid yearly or, in certain rare cases, in a one-time lump sum.  If there is a verbal or written agreement reached between two spouses/partners/parents concerning spousal or child support, this will be taken into consideration by the Court. However, Judges will make support orders based on the current financial position of the spouses/partners/parents.  If the situation changes, either spouse, partner, or parent can apply to change the support order.

 

CHILD SUPPORT

 1.    Who is a Parent?

 Biological parents, adoptive parents, step-parents, or other people standing in the place of a parent all have the potential to be considered parents, and be obligated to pay child support.

 

The Court can make presumptions about who is the parent of a given child.  A female person who gives birth to a child is presumed to be the biological mother of the child.

 

A male person is presumed under the law to be the biological father of a child if:

a)   He was married to the mother of the child when the child was born;

b)   He was married to the mother of the child and the marriage ended less than 300 days before the birth of the child;

c)   He got married to the mother of the child after the birth of the child and acknowledged that he is the father of the child;

d)   He lived with the mother of the child for 12 consecutive months during which time the child was born and he acknowledged that he is the father of the child;

e)   He is registered as the father of the child on the child’s birth certificate; or

f)     A Court has found him to be the father.

 

These presumptions can be rebutted with appropriate evidence and the Court may request a DNA test to establish who the father is. If a person refuses to provide a DNA sample, the Court may presume he is the father.

 

Step-parents or other people standing in the place of a parent may also be considered parents and can be obligated to pay support. The Court will look at the nature of the relationship between that person and the child. They will consider things like whether the step-parent intended a permanent relationship with the child and the feelings of affection between the step-parent and child.

 

2.    Who is a Child?

Under the Divorce Act, children are entitled to support when the child is:

a)   under 18 years of age, or

b)   over 18 years of age, but is unable by reason of illness, disability or other cause to obtain the necessaries of life, or

c)   over 18, a full-time student, and dependent on his or her parents’ financial support. 

 

Under the Family Law Act, children are entitled to support when the child is:

a)   under 18 years of age, or

b)   between the ages of 18 and 22, a full-time student, and dependent on his or her parents’ financial support

* If the child is married or in an adult interdependent relationship, or is living an independent lifestyle, the parents are no longer obligated to provide for the child’s needs. 

 

 3.    The Child Support Guidelines

 

When a child resides primarily with one parent, the other parent who pays support is called the ‘payor’. The Child Support Guidelines list a base amount for child support depending upon the income of the ‘payor’ and the number of children involved.  On top of the guideline amount, the payor may also have to pay a portion of any special expenses. These could include things like:

  

          a.       Child care;

          b.       Medical and dental premiums;

          c.       Health related expenses that exceed $100 annually;

          d.       Extraordinary school expenses;

          e.       Post-secondary education;

          f.        Extra-curricular activities.

 

The costs of these special expenses are paid proportionally to the parent’s income. The Court will also take into consideration any undue hardships such as high access costs, high levels of debt, or a legal duty to support other children.  It is important to note that the Court will also take into consideration the standard of living for each of the parents. 

 

The Court tries not to create hardships for the spouse’s second family because of heavy maintenance payments to the first family.  However, a Court will not allow a parent to escape his or her parental responsibilities simply by re-marrying.  The Court will not allow the children of the first family to live at a significantly lower standard than those of the second.  The Court tries to balance the rights of all the parties. Undue hardship is a very hard claim to make out.

 

While there is a possibility that spouses can agree to an amount other than what is in the Guidelines, the Court must be satisfied that the children will be financially supported despite not following the Guidelines. The Court does this to protect children and to make sure that parents do not bargain away their children’s right to support. 

 

4.    Calculating Child Support

 Each spouse must disclose their financial information for the purpose of calculating child support. This is sometimes done by serving a “Notice to Disclose”. If one spouse refuses to reveal his or her finances, the Court may impute their income. This means the Court will determine a fair value of what the spouse’s income is believed to be.

 

The calculation of child support can be quite complicated. The method of calculating the amount may change depending on the custody arrangement. It is recommended that parents see a lawyer or go to the Resolution Support Centre. They will have the computer software necessary to calculate the amount of child support. Parents may also attend Child Support Resolution in order to come to an agreement on child support. If neither parent has a lawyer and they are seeking an interim child support order under the Divorce Act or are looking to vary an existing order issued by the Court of Queen's Bench, they are required to attend Child Support Resolution.

 

Note that the obligation of parents to exchange financial information is ongoing as the amount of support changes with any change in income. Parents should exchange financial information every year at an agreed upon date.

 

Parents may also register in the Child Support Recalculation Program (RP). RP recalculates future monthly child support based on the Child Support Guidelines tables, as well as proportionate shares special of expenses. Either a recipient or payor of child support can choose to register with RP. The service costs $75 per year for each parent. RP uses income tax information to set the new child support amount.  If there is only a small change in child support (less than $10 per month or less than a 10% change in the proportionate share of special expenses) then the RP will not change the child support amount and there will be no service fee. This avoids the need to go to the Court for yearly recalculations. To participate both parents must live in Alberta and the original order must have been based on the Child Support Guidelines.

 

For more information visit www.recalculation.gov.ab.ca.

 

5.    Federal Child Support Tables

 To view the Federal Child Support Guidelines and the appropriate Tables, please see http://www.justice.gc.ca/eng/fl-df/child-enfant/ft-tf.html. This information can also be obtained in printed form from the courthouse. Make sure that you use the table applicable to the province in which the payor lives.

 

Example of a 2011 Simplified Table for Alberta:

 

  

6.    Support & Parenting Time

 Support orders, parenting time, and contact orders are distinct.  If one parent does not pay child support, the other parent cannot deny contact with the child.  Also, if one parent denies the other parent contact with the child, the other parent cannot stop making support payments.  Only the Court can vary a support order.

 

A parent who is paying child support but not getting parenting time has limited options.  There is no governmental agency that can remedy this.  A parent in this situation can return to Court to seek enforcement of a contact order through a contempt proceeding or through a change in the order.

 

Parents who wish to negotiate for parenting time and child support may get help through Family Mediation by Family Justice Services.

 

Be aware that parents obtaining a divorce MUST attend the Parenting After Separation Seminar offered through the Alberta Courts. (See the referral section of this pamphlet for contact information). This seminar is designed to help parents understand the process and effects of separation and to encourage parents to make positive choices about how they will continue to parent their children after separation. You are now able to take this course online. There is also a course specific for high conflict families called Parenting After Separation for High Conflict Families.

 

  SUPPORT FOR SPOUSES AND ADULT INTERDEPENDENT PARTNERS

 Support can be awarded under Alberta’s Family Law Act for married spouses who are separated and not divorcing as well as for adult interdependent partners. 

 

Married spouses who are divorcing are governed by the federal Divorce Act. 

 

Spousal support can also be called alimony. A spouse does not automatically have a right to support. This means that they do not have the general right to be maintained in the lifestyle they have been accustomed to.  However, the Court may order spousal support where one spouse has suffered a disadvantage either as a result of the relationship or its breakdown, the financial consequences of the care of any child(ren) and the possibility of the spouse becoming self-sufficient.  It is important to note that child support is always given priority over spousal support.


1.    Factors the Court Considers 

In making a spousal or adult interdependent partner support order, the Court MUST consider the following factors:

 

a.    The condition, means, needs and other circumstances of each spouse, and

b.    The length of time they lived together, and

c.    The work each spouse performed while they were living together.

 

Condition of the spouse includes such things as the health of the spouse.  The means of the spouse refers to the spouse’s ability to support themselves without assistance.  When looking at the spouse’s function, the Court will consider whether or not the spouse earned an income during the relationship or whether the spouse remained at home to raise children.

 

The Court can also consider support obligations that one of the spouses/partners may already have to any other person and the new financial situation of the couple.  If one of the spouses has entered into a new relationship where they share expenses with their new partner, it can affect the amount of support awarded.

 

A spouse will not be denied support or given less assistance because he or she committed adultery. When making a support order, the Court does not consider any misconduct of a spouse or adult interdependent partner unless:

 

a)   It unreasonably prolongs or aggravates the need for support, or

b)   It unreasonably affects the ability to provide support (intentional unemployment, for example).

 

The Federal government has drafted Spousal Support Advisory Guidelines. These guidelines suggest a range of money a spouse may be awarded as support, as calculated based on both spouses’ incomes, as well as a variety of other factors. These guidelines are informal and only advisory in nature - they are not legally binding (unlike the Federal Child Support Guidelines).

 

The formula for calculating the amount and duration of support is complicated and it is suggested that spouses seek legal advice. A lawyer may have software to calculate the range. More information can be found at: http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html.

 

2.    Objectives of Spousal or Adult Interdependent Support Orders

The support order should recognize the economic advantages and disadvantages of the parties arising from the relationship or its breakdown. It should also spread the financial consequences arising from the care of any child of the relationship between the spouses or adult interdependent partners. Support should, as much as possible, promote the economic self-sufficiency of each spouse or partner within a reasonable time.

 

3.    Priority of Child Support

The Courts give priority to child support obligations over spousal support obligations.  This means that child support must be paid before any spousal support.  Also, spousal support amounts can be reduced to give priority to child support obligations. Therefore, any change to the child support order can then result in spouses being able to apply for a change in the spousal support order.

 

4.    Types of Support Agreements

Spouses/partners may enter into two types of written agreements:

 

 

1.    Where one spouse/partner agrees to pay support for the other spouse/partner.

2.    Where one spouse/partner agrees the other spouse/partner does not have to pay support.

 

 

These written agreements cannot vary an already existing Court order for support. The Court is able vary these written agreements in certain situations.  For specific situations of when these agreements can be altered, please speak with a lawyer.

 

Please note that this is only applicable to spousal support. Parents may not contract out of paying child support. Child support is the right of the child, and cannot be given up by parents.

 

5.    Types of Payment

Support is usually ordered as a fixed sum, paid on a regular basis every month. It may also be paid yearly or, in certain rare cases, in a one-time lump sum.

 

If there is a verbal or written agreement reached between two spouses concerning support, this will be taken into consideration by the Court. However, Judges will make support orders based on the current economic position of the spouses/parents.

 

If the situation changes, either spouse or parent can apply to change the order. Both spouses will need to disclose their income information in order for the Court to determine the amount and type of order they will make.

 

6.    Termination of Spousal or Adult Interdependent Partner Support Orders
A spousal or adult interdependent partner support order terminates upon the death of the spouse or adult interdependent partner receiving support. The termination of a support order does not affect any debts owing under the order before it is terminated.

 

 GENERAL INFORMATION ABOUT CHILD & SPOUSAL SUPPORT

 

1.    Disclosure of Financial Information

 A spouse, parent or adult interdependent partner must provide their current financial information as long as a support order is in place. This might be done on an agreed upon date every year or by written request.  If a partner fails to comply with this request, a Court may force them to provide the information, find them in contempt, or calculate their income in any amount it considers appropriate. Please see a lawyer for advice.

 

2.    Possession of the Home and Property

A spouse or adult interdependent partner may be given exclusiveright to live in the family home and/or use household goods as part of a support order. The Court can also evict a spouse or adult interdependent partner from the family home. In deciding who gains possession of the home, the Court considers many factors including the needs of the children, lease agreements, and the financial situations of the parties.

 

3.    The Maintenance Enforcement Program

Support orders are automatically filed with the Director of Maintenance Enforcement, but in practice they are only enforced when either the recipient or paying parent applies. They may register with the Maintenance Enforcement Program (MEP) to set up payments.  Under this program, support from the payor is paid to the Director of Maintenance Enforcement who then directly deposits the money to the person receiving support.  MEP does not charge any fees to the person who is receiving the payments. 

 

To opt out of the program, the receiving parent should complete a Withdrawal from the Maintenance Enforcement Program form. A person who opts out of the program is responsible to enforce the order on their own. If the parties have their own agreement and wish to have the agreement enforced by MEP, the Maintenance Enforcement Support Agreement should be filled out. Both forms, as well as others, are available on the Maintenance Enforcement website [https://justice.alberta.ca/programs_services/mep/Pages/forms.aspx]. If you are unable to obtain the forms online, contact MEP at 780-422-5555.

 

The Director of Maintenance Enforcement has broad powers to collect support payments.  To make sure that a parent, spouse, or adult interdependent partner pays support, the Director may do the following:

 

a.    Make deductions from wages (maximum of 40% gross wage);

b.    Take money payable to the debtor from bank accounts, mutual funds, rent or contract fees;

c.    Garnish income tax refunds, GST rebates, Canada Pension Plan income, and Employment Insurance payments;

d.    The debtor may be prevented from transferring any property he or she wishes to sell, and MEP may seize assets including vehicles, shares and bonds;

e.    The debtor may have his or her driver’s licence, registration, licence plates, or abstracts restricted or suspended;

f.     Recreational licences for fishing and hunting may be restricted;

g.   MEP may cancel current driver’s licences for account more than 60 days in late payments;

h.    Passports can be revoked;

i.     MEP may prevent an owner from re-mortgaging or selling real estate without first making payments. In some cases MEP may force sale of real estate;

j.     Failure to make child support payments may be registered as bad debt and affect credit;

k.    If assets are being kept in the name of a company, MEP can apply for a court order allowing the company’s assets to be used to pay for the debt;

l.     MEP may seize assets the debtor tries to sell; and/or

m.  If assets are being put in someone else’s name to avoid collection, MEP can apply for a court order allowing for their seizure.

 

The Court has the power to have a payor who tries to leave Alberta to avoid making payments arrested. Photographs and names of debtors may also be posted on the Maintenance Enforcement website. The information that is gathered is only used to enforce maintenance payments and is otherwise confidential.  The Maintenance Enforcement Program has also introduced deterrent penalties:

 

          a.       A $25 penalty for each month that a payment is late or not made at all;

          b.       A $50 returned item penalty for payments returned for non-sufficient funds or ‘stop payments’;

          c.       A $200 penalty for failure to return a Statement of Finances when requested;

          d.       A $50 direct payment penalty to discourage direct payment between debtors and creditors;

     e.       $50 service fee for substitutional service on a debtor or creditor by serving MEP;

     f.        $200 re-registration service fee for a client who asks MEP to re-open a file that          was closed due to that client's lack of cooperation; and/or

     g.       Interest collection on late payments (4.25% in 2008 - determined by the Judgment Interest Act)

 

If the parent, spouse, or adult interdependent partner who is owed payments is on Income Support (social assistance), he or she must register with the Maintenance Enforcement Program to receive support payments.  In this situation, the government has all the rights to the payments.  If the support amount is lower than the Income Support benefits, the debtor (or the person who pays the support) owes the government the amount of support. 

 

4.    Non-Payment of Support

Occasionally, orders for support are not paid.  Sometimes a parent defaults for financial reasons, such as the loss of employment or other setbacks.  In this situation, the defaulting spouse or parent should apply to the Court for a review of the support order.  The amount of support which must be paid MAY be reduced if the defaulting person can show that there has been a change in his or her circumstances that would justify a decrease in payments. The Court may also give a parent some time to get his or her finances in order if he or she acquired debts after the relationship ended as a result of honest efforts to maintain the children’s standard of living.  If a parent paying support has difficulty making payments because he or she has spent money on things that are solely for his or her own pleasure, the Court will not be very sympathetic and the children’s claim for support will take priority.

 

5.    Variation of Support Orders

Because parents of children will exchange financial information on a yearly basis under the Child Support Guidelines, there is usually no need to go to Court to vary child support. As income changes, so does the amount payable. The Child Support Recalculation Program (RP) can assist parents recalculate their child support amount without having to go to Court. For more information on the RP visit www.recalculation.gov.ab.ca.  

 

As long as the child remains eligible for child support,the order will rarely be changed even if the parents remarryor live in common law relationships. 

 

A Court will not allow a payor parent to escape his or her parental responsibilities by remarrying.  Nor will the Court allow a child of the first family to live at a significantly lower standard than those of the second family. 

 

Child support orders are only varied in cases where it is causing undue hardship for the parent who is paying support.  The Courts have a specific test for what may be considered undue hardship.  If you believe this may apply to you, contact a lawyer for further information.

 

A paying parent has no say in how the basic maintenance payments are to be spent.  The paying parent may have a say in spending for extra-curricular activities. If there is clear and convincing evidence that the support payments for the child are being improperly spent, and the child is being improperly provided for, the paying parent may apply to the Court to change the custody order.

 

Spousal support orders, however, can be varied in the Court where the order was originally granted. The amount of support that must be paid may be reduced if the person can show that there has been a change in his or her circumstances that would justify a decrease in payments.  If the income of the person receiving support payments changes, the payment amount may also be varied upon application.

 

6.    Appealing a Support Order

If a spouse does not feel that the Justice’s decision is correct, he or she can appeal to the Court of Appeal.  The ordinary appeal period is within 30 days of the date that the order was granted by the Judge.  Generally, the Appeal Court will be reluctant to change the Trial Judge’s decision if the amount of support is the only thing being challenged.  However, each case will depend on its facts.  For appeals, a lawyer should be consulted.

 

It should also be noted that if there is an existing order from Family Court or a previous separation agreement concerning support, the Court of Queen’s Bench may make an order similar to these if the support amount is still satisfactory.

 

 

WHERE CAN I GET HELP OR MORE INFORMATION?

 

Legal Resources

 

Alberta Courts Website…..www.albertacourts.ca

 

Provincial Court Family and Youth Court (Edmonton).....780-427-2743

 

Resolution Support Centre.....780-427-8343

Room 8124, 8th Floor - John E Brownlee Building, 10365 97 Street NW, Edmonton, AB

Free legal information, explanations of court procedure, court forms for most family law applications, help with court forms, child support guideline calculations if you do not have a lawyer.

 

Edmonton Community Legal Centre (www.eclc.ca).....780-702-1725

#200, 10115 100A Street, Edmonton, AB

Free legal information, free presentations on family law topics every Thursday evening at the Stanley Milner Library from 6:30-8:30, possibility to consult with a family law lawyer for approximately 30min if you have attended a lecture.

 

Legal Aid Society of Alberta (www.legalaid.ab.ca).....780-427-7575

          Free legal information, lawyers who may represent you for a reduced rate.    

 

Lawyer Referral Service.....1-800-661-1095

            Referrals to up to 3 lawyers that may be able to help you.

 

Student Legal Services of Edmonton (www.slsedmonton.com).....780-492-2226

Law students able to provide free legal information and assistance with child support applications

in the Provincial Court of Alberta.   

 

Elizabeth Fry Society.....Toll Free: 1-866-421-1175

Court workers explain court procedure and terminology, provide legal referrals, and offer practical assistance and support to those appearing in court 

 

Native Counselling Services .....780-423-2141

Court workers provide information on the nature of the criminal charge, rights, and court procedure. Assistance and support with the necessary documents, Legal Aid applications, and other help.