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Maintenance For Married Persons Under The Divorce Act

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 Contents

Introduction

What Is Maintenance?
The Federal Child Support Guidelines
Spousal Maintenance
Child Maintenance
Determining The Amount Of Maintenance Before Divorce
Maintenance Upon Divorce
Federal Child Support Tables
Referral Numbers

Introduction

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

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What Is Maintenance?

Maintenance is usually a fixed sum, paid on a regular basis every month. Maintenance may also be paid yearly or, in certain rare cases, in a lump sum. If there is a verbal or written agreement reached between two spouses/parents concerning spousal or child maintenance this will be taken into consideration by the Court, however, Judges will make maintenance orders based on the current economic position of the spouses/parents. If the situation changes, either spouse or parent can apply to vary (change) the maintenance order.

Usually, if a maintenance agreement is made up with the help of a lawyer, the Court will approve the amount payable, as it will likely follow the Federal Child Support Guidelines. An agreement which does not follow the Guidelines will not be approved by the court.

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The Federal Child Support Guidelines

As of May 1, 1997, the child maintenance portion of the Divorce Act was changed. New Federal Child Support Guidelines were introduced to try to simplify the calculations for child support and to bring consistency in the area. Before the guidelines the amount of maintenance parents were required to pay could vary greatly. The guidelines must be applied by all Judges in cases where divorce is involved.

The Federal Child Support Guidelines ensure a base amount for child maintenance depending upon the income of the payer and the number of children involved (this pamphlet includes the base amounts of maintenance for one and two children). The maintenance amount set by the Federal Guidelines can be changed to take special child care expenses into consideration, and to account for undue hardships such as access costs, high levels of debt, or a legal duty to support other children. It is important to note that the standard of living for each of the spouses in their new separate homes is also taken into account.

Before a person can use the guidelines, he or she must have received full financial disclosure from the other party. In other words, both spouses must reveal all their financial information to each other. If one spouse refuses to reveal his or her finances, the other spouse may serve a Notice to Disclose or go to Court to seek an order for financial disclosure.

Although the intent of the new law was to simplify child maintenance, it really does not. It is recommended that spouses seek legal advice from a lawyer who has a computer program which can calculate the amount that should be paid, before trying to get or change a maintenance order.

One important change which the law brings is that child maintenance payments made under maintenance orders which came into existence on, or after, May 1, 1997, are no longer taxable to the person receiving maintenance and are no longer tax deductible to the payer. If a maintenance order was made before May 1, 1997, payments made under the order are still taxable and tax deductible, unless both spouses agree in writing to follow the new guidelines. Any pre-existing maintenance orders which are varied (changed), for any reason, after May 1, 1997 must follow the new guidelines and will fall under the new tax rules.

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Spousal Maintenance

A spouse does not automatically have a right to maintenance. This means that he or she does not have the right to be maintained in the lifestyle he or she is accustomed to. However, the Court may order spousal maintenance where one spouse has suffered an economic hardship either as a result of the marriage, or as a result of the marriage breakdown, and where an award of maintenance will promote economic self-sufficiency between the spouses.

If the spouse is working and he or she is able to support himself or herself adequately, it is unlikely that he or she will get maintenance. However, a reservation of maintenance may be allowed in a divorce judgment. A reservation of maintenance allows a spouse to go to court to get maintenance if circumstances later change.

When a spouse is not able to support himself or herself, maintenance will likely be ordered until he or she can get back on his or her feet. It should be noted that if one spouse is receiving Social Assistance and that spouse is not going to receive maintenance, the Judge will likely ask the spouses to explain the situation. In this situation, it is a good idea for the spouses to prepare a list of reasons ahead of time explaining why maintenance is not going to be paid. This sort of advance preparation will allow the Court to function more smoothly and will prevent delays in the Court proceedings.

Under the Divorce Act, the amount of spousal maintenance, and when the maintenance will end, is determined by the Judge. For example, a spouse may receive maintenance for a two to four year period while he or she is trying to get job skills through education and/or training. This type of maintenance order is called a fixed term order because maintenance is only given for a set length of time before it will end. When deciding how long a spousal order will last, the Court will base its order on the amount of time a spouse will need before he or she could reasonably achieve self-sufficiency. If the spouse is elderly or unable to obtain new skills or employment, then the Court will take these facts into consideration.

In allowing spousal maintenance, the Court MUST consider the following factors: the condition, means, needs and other circumstances of each spouse, including the length of time they lived together AND the work each spouse performed while they were living together. Condition of the spouse includes such things as the gender and health of the spouse. The means of the spouse refers to the spouse’s ability to support himself or herself without assistance. When looking at the spouse’s function, the Court will consider whether or not the spouse earned an income during the marriage or whether the spouse remained at home to raise children. The Court will not consider a spouse’s misconduct, such as adultery or cruelty, when it decides a maintenance award. In other words, a spouse will not be denied maintenance or given less maintenance because he or she committed adultery AND a spouse will not be automatically entitled to maintenance because his or her spouse committed adultery. However, the Court may consider misconduct that affects the parties financially, such that the paying spouse would be unable to pay the required amounts (e.g. increasing debts), when deciding a maintenance award.

The amount of money to be paid for spousal maintenance will be determined by either an agreement made between the spouses or by a Court order. The financial position of both the spouses will be considered by the Court when the decision to grant or deny maintenance is made. Records of earnings, assets and savings must be submitted to the Court if it asks for them. If a separation agreement has been drawn up, the Court will take this into consideration in determining the amount of maintenance to be paid. A separation agreement is simply a contract between spouses to determine how such things as custody, division of joint assets and payment of both child and spousal maintenance will be handled. The agreement sets out the terms and conditions of the separation. If spouses begin to live together again, the separation agreement MAY end, depending upon the terms. Spouses wishing to make a separation agreement must consult a lawyer.

The Government of Canada recently drafted proposed Spousal Support Advisory Guidelines, intending to bring more certainty and predictability to the determination of spousal support under the federal Divorce Act. However, these guidelines are informal and only advisory in nature - they are not legally binding.

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Child Maintenance

1. Children of Married Parents

Every child born in a legal marriage has a right to maintenance from BOTH parents which cannot be surrendered or lost through the conduct of either parent. This is because it is against public policy to contract out of parental responsibilities. This means that parents cannot bargain away their children’s right to maintenance. For example, if the mother and father sign a separation agreement which says that the mother alone is to be responsible for the child’s upkeep, a Court has the power to disregard that agreement and impose a maintenance order on the father. The Court will make a maintenance order for the amount set out in the separation agreement, if it considers that amount to be fair, or, it may change the amount the paying parent must contribute.

Once a child is born, the parents have a responsibility to see that their child receives adequate maintenance. A person who fails to provide his or her children with adequate maintenance, without a lawful excuse, may be charged with an offense under the Criminal Code, the Maintenance Order Act or various other Alberta child welfare laws. A parent’s responsibility for child maintenance begins with the birth of the child and can continue up until the child turns 22. Children that are over the age of 18 must be dependent upon their parents and be enrolled full-time in post-secondary education to receive support. Child maintenance ends when the child is no longer a dependent or if the child is adopted by another family.

It is important to note that a Court might order child support even if one of the divorcing spouses is not the natural parent of the child. For example, if the child is the biological child of the wife from a previous marriage, and if the husband had taken on the role of father to the child (although not adopting the child), the husband might be ordered to pay child support. In these circumstances, the Court will consider whether the husband intended a permanent relationship with the child, the length of time of their association, the feelings of affection between the husband and child, what name the child used and how the child referred to the husband. For example, the court would want to know whether or not the child referred to the husband as “Dad”.

2. Factors the Courts Consider When they Award Child Maintenance

A Judge will look at the means of both parents and the needs of the child(ren) to determine the amount of child maintenance to be paid. The most important factor the Judge will look at is the Federal Child Support Guidelines (please see the charts in this pamphlet). However, the court will also consider the following factors within the gambit of the guidelines.

• The number of children and their ages;
• Whether the children are in school, their grade level, and their ability to continue their education;
• Type of jobs, if any, the mother and father have and their respective incomes as well as future potential earnings. (Eg. If one parent is capable of working but chooses not to, the Court may impute the income capable of being earned to that parent);
• Any assets that the parents own jointly or individually. (Eg. A house);
• The standard of living of the custodial parent. This standard should not suffer drastically due to the circumstances of the separation;
• Reasonable expenses of each parent and the cost of maintaining the children;
• Whether the payment of the maintenance order will lower the payer’s standard of living to below the subsistence (poverty) level;
• Special expenses specific to the particular child. Some examples include, but are not limited to, day care, medical costs and extra curricular activities. 

Section 7 expenses are special or extraordinary expenses that the Court may allow to maintain the child’s standard of living. This is based on the child’s best interests and the costs of these expenses in relation to the financial means of the parents or child. These include:

• Child care;
• Medical/dental premiums;
• Health related expenses that exceed $100 annually (eg. glasses);
• Extra-ordinary school expenses;
• Post-secondary education;
• Extra-curricular activities. 

In assessing these special expenses the Court will take into account the physical and emotional condition of the children, any assets or finances the children have, and the standard of living the children were used to during the marriage.

3. Payment and Duration of the Child Maintenance Order

The Court has the option of ordering maintenance to be paid periodically, monthly or weekly, or ordering that one large lump sum be paid. Maintenance orders usually direct that periodic payments, one per month, be made from one spouse to the other through the Director of Maintenance Enforcement. A parent might ask for a lump sum payment because this type of payment allows greater freedom and more options to control affairs. This type of payment also removes the worry which comes from collecting payments. However, the Courts rarely allow lump sum payments because they make it hard to change a maintenance order if there is a change in circumstances. The Court will usually allow for a lump sum payment only if the parties are rich and there is a strong possibility that periodic payments cannot, or will not, be made.

The Court will look at the following facts to decide whether a lump sum payment should be made:

• The parent’s ability to raise money for the payment;
• The need of one parent to set up a home for the kids;
• Whether periodic payments would lead to other problems; AND
• Whether or not it is likely that periodic payments would be paid.

This is not an exhaustive list.

As can be seen from the requirements set out above, there must be very special circumstances to get a lump sum payment. Lump sum payments are usually only awarded where the payor has the money available and the payer has refused to obey an order for periodic payments in the past.

In a divorce, there is usually no fixed time period for a maintenance order because children are entitled to maintenance so long as they are dependent. The length of time that a child will be dependent is difficult to determine in advance. It is important to note that a parent cannot be criminally liable for the care of a child after the child reaches 16 years of age. Most commonly, child maintenance provides for the payment of maintenance until:

• The child is no longer a child of the marriage as defined by the Divorce Act or;
•  The children are 18 years old or until they finish their first secondary program. 

4. The Maintenance Enforcement Program

Either the recipient or payor parent can register to have payments made through the Maintenance Enforcement Program (MEP). The parents may, if they wish, opt out of the MEP and get their money directly from the paying spouse. If the receiving spouses chooses to have the Maintenance Enforcement Director enforce the maintenance order, the collection of maintenance payments will be handled by MEP. In this system, maintenance paid by one spouse goes to the Director of Maintenance Enforcement and the Director then makes out a government cheque for the maintenance amount to the spouse receiving the maintenance payments. The Maintenance Enforcement Plan does not charge any fees to the creditor spouse.

Any maintenance orders made by a Court BEFORE January 1, 1987, MAY be filed with the Director of Maintenance Enforcement IF there has been a DEFAULT in payment. ALL maintenance orders made by any Court AFTER January 1, 1987 are automatically filed with the Director of Maintenance Enforcement, however the parent receiving the maintenance must still apply to the Director of Maintenance Enforcement if they wish the support payments to go through the Maintenance Enforcement Program.

The Director of Maintenance Enforcement is given broad powers to collect maintenance. To make sure that a spouse pays maintenance, the Director can do the following:

• Garnish wages, G.S.T. credits and tax refunds;
• Seize goods and freeze assets;
• Suspend a driver’s licence or passport.

This is not an exhaustive list.

If a person tries to leave Alberta because he or she wants to avoid paying maintenance, the Court has the power to have that person arrested.

The Director of Maintenance Enforcement will try to collect late maintenance payments. The Director has the power to collect arrears (late payments). As of November 14, 2005, the Maintenance Enforcement Program introduced deterrent penalties:

• A $25 penalty for each month that a payment is late or not made at all.
• A $50 returned item penalty for payments returned for non-sufficient funds or ‘stop payments’.
• A $200 penalty for failure to return a Statement of Finances when requested.
• A $50 direct payment penalty to discourage direct payment between debtors and creditors. 

Note: The Maintenance Enforcement Program will be introducing new service fees - please contact the Maintenance Enforcement Program for more details (see the contact information on the back).

Parents who wish to have maintenance collected by the MEP do not have to know where their former spouses are living. The Director can enforce the order even if former spouses do not provide him with this information because the Director has the power to look at motor vehicle registrations and Alberta Health Care records to find out where the non-paying spouse lives. However, it is helpful to provide MEP with as much information as possible about the debtor spouse, including his or her address, SIN, driver’s licence number, the name of his or her employer, and his or her bank account number and branch location.

A spouse who chooses not to be a part of MEP is responsible for the enforcement of the maintenance order on their own, including seizure, garnishment or the holding of a default hearing.

If the parent who has custody of the children is on Social Assistance, he or she MUST register with the Maintenance Enforcement Program to get maintenance. Alberta Family and Social Services will apply for a maintenance order for the parent and will require the parent to cooperate with them. If the parent receiving assistance does not cooperate with Alberta Family and Social Services he or she could lose benefits. Once the maintenance order is in place, Social Services will take all or part of the maintenance money paid by the non-custodial parent to help lower their costs. A social worker will handle this for the parent who is receiving assistance. The payment or non-payment of maintenance by a non-custodial spouse will not affect the amount of social assistance the custodial spouse receives. The MEP is available to all Albertans.

5. Non-Payment of Maintenance

Occasionally, orders for maintenance are not paid. Sometimes a parent defaults for financial reasons, such as the loss of employment or other setback. In this situation, the defaulting spouse should apply to the Court for a review of the maintenance order. The amount of maintenance which must be paid MAY be reduced if the defaulting parent can show that there has been a change in his or her circumstances that would justify a decrease in maintenance. If a parent who is heavily in debt is ordered to pay maintenance it is possible that the Court may give him or her some time to get his or her finances together before payments begin. 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 divorce as a result of his or her honest efforts to maintain the children’s standard of living. If a parent paying maintenance 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 maintenance will take priority.

Some people consider declaring personal bankruptcy to avoid paying maintenance. This is a short sighted solution that is damaging to the children involved, and based on a misunderstanding of Bankruptcy laws. The Canada Bankruptcy Act says:

148.1 An order of discharge does not release a bankrupt person from:

• any debt or liability for alimony
• any debt or liability under a maintenance or affiliation order or
• under an agreement for maintenance and support of a spouse or child living apart from the bankrupt. 

One reason that a portion of the bankrupt’s assets are exempt from creditors is to provide the spouse who is bankrupt with the money necessary to maintain his or her dependents. Therefore, bankruptcy does not eliminate the parental responsibility of providing maintenance for children. Maintenance will still have to be paid. Furthermore, an execution order for the payment of maintenance is an exception under the Exemptions Act. This means that the goods of the paying parent, which normally cannot be seized, can be taken and sold in order to pay maintenance which is owed.

On occasion, one parent may want to recover maintenance arrears by having the other parent declared bankrupt. In theory, this would give most creditors access to the paying parent’s assets. However, the ability of a parent to do this will depend on the wording of the statute (law) which helped them get the maintenance order. A lawyer is required to do this.

Sometimes, parents without custody try to avoid paying maintenance by selling their personal assets to a third party. If the sale between the paying parent and the third party is not in the best interests of the children, the Court will not allow it. More likely than not, the Court will declare the sale of the property to the third party to be fraudulent on the grounds that it was made to hinder, delay and defraud the children’s claim. Generally, the Courts are not sympathetic to people who attempt to avoid paying maintenance when they have the ability to pay.

6. Maintenance is NOT Tied to Access

Parents must understand that maintenance and access are not tied together. If a spouse does not pay maintenance, the other spouse cannot deny access. This also means that even if the spouse without custody is intentionally denied access, he or she cannot stop making maintenance payments. If the spouse with custody is not allowing access, he or she is in breach of the court order. On occasion, when there is a blatant denial of access, judges have used their power to reduce the amount of maintenance which must be paid.

A parent who is not receiving his or her child maintenance can get help from the Maintenance Enforcement Program (MEP). For more on this please see the section about the Maintenance Enforcement Program which appears earlier in this pamphlet. There is no government agency which a parent who is paying maintenance but is not getting access to his or her children can turn to. However, a parent in this situation can return to the Court to seek enforcement of the access order through a contempt proceeding or through a change in the access order.

Parents who wish to negotiate for access and maintenance may get help from the Edmonton Custody and Mediation Program (please see the back of this pamphlet for the telephone number of this agency and all other agencies mentioned in the pamphlet). If parents want to learn more about these issues, they can also attend the Parenting After Separation Seminar.

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Determining The Amount Of Maintenance Before Divorce

The Types of Maintenance Orders which Separated Spouses can Make

1. Maintenance by agreement

Maintenance for the spouse and the children can be arranged by agreement between the spouses (a separation agreement). A separation agreement is simply a contract between the husband and the wife to determine how matters such as custody, division of joint assets and payment of maintenance will be handled. In other words, the agreement sets out the terms and conditions of the separation. If the two spouses decide to get back together again, the separation agreement usually ends. The separation agreement should set out the amount of child maintenance to be paid and when the maintenance will end. Most often, the separation agreement will provide for the payment of maintenance for so long as the child is still a child of the marriage, which means that the child is not economically self-sufficient, and still relies upon one or both of his/her parents for financial assistance, usually by reasons of schooling or disability. Older separation agreements often provided for the payment of child maintenance until the children reach the age of 18 or until the children become financially independent, or perhaps until they get their first University degree or college diploma or until they reach 21 years of age. It is important to note that if a situation arises where, despite the existence of a separation agreement, the Court is required to make an order for maintenance, that the Court does not have to follow the agreement. The Court will take the separation agreement into consideration when it makes the maintenance order but if the Court is of the view that the maintenance set out in the agreement is too low or unfair, the Court will make an order correcting the situation. When the Court makes a maintenance order it will consider the financial position of both the father and the mother. Records of earnings, assets and savings must be given to the Court when they ask for them. If you wish to have your maintenance agreement approved, it must be in the proper form. Spouses wishing to make a separation agreement should consult a lawyer. Without a court order, the Maintenance Enforcement Program (MEP) requires an additional agreement (a Maintenance Enforcement Support Agreement, available through MEP) be signed and registered in order for maintenance to be enforceable.

2. Maintenance Through Court of Queen’s Bench

A spouse who is separated can apply for maintenance at the Court of Queen’s Bench. Applications for maintenance through the Court of Queen’s Bench are made where a divorce action has already been started and the spouses want the Judge to make an interim (temporary) maintenance order for one of the spouses and/or the children. Because this is a Queen’s Bench application, a lawyer will likely be needed.

3. Variation of Maintenance Orders

A parent can apply to the Court of Queen’s Bench for an interim child support and/or spousal support order. This would be applied for in the event that the parties are not eligible to obtain a divorce judgment immediately. This could be because some of the issues are contested (for example, custody) or because the parties must wait to establish the ground of marital breakdown.

If either parent re-marries or is living in a long-term common law relationship, the other parent may apply to the Court for a change in the spousal maintenance order. However, a child maintenance order will rarely be changed even though one parent re-marries or lives in a long-term common law relationship.

Sometimes, if the parent paying maintenance re-marries, the Court may try to balance the new obligations to the second family with those of the first. 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. Nor will the Court 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.

If the circumstances do change, the parents could agree between themselves for the payment of a lesser amount. Any such agreement should be in writing and drawn up into a consent order of the Court. However, the Court has the final say even if both spouses have consented.

If the maintenance order was made through the Court of Queen’s Bench, it is best to get a lawyer because varying this type of order is complicated. A Notice of Motion must be filed and affidavits must be sworn and filed.

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Maintenance Upon Divorce

Under the Divorce Act, a Judge in the Court of Queen’s Bench can make corollary relief orders when the divorce judgment is made. This means that a Judge can make orders dealing with maintenance, child support, child custody and access at the same time that he or she grants the spouses their divorce. The Judge has the power to order that money be paid by either spouse for the support of the other spouse and/or the children.

Corollary relief orders under the Divorce Act may be made while the spouses are waiting for their divorce or they may be made at the time when the divorce judgment is handed down. Corollary relief orders can be made for a limited time or they can be made into a final order.

The Divorce Act says that the Court will decide on a maintenance order based on what is fit and just; the maintenance order must look at the income and needs of each of the parties. The ability of each parent to pay maintenance and the needs of the children are considered by the Court. The conduct of a parent, for example adultery, can never be used as a reason to withhold or lower the amount of child maintenance being paid. This is because a child cannot lose his or her right to maintenance.

The Court has the power to order child maintenance any time after the divorce judgment has been made, even if maintenance was not asked for. Maintenance orders are valid throughout Canada.

It should be noted that a Judge will not allow a divorce judgment if he or she is unhappy with the amount of child maintenance that the paying spouse has agreed to give the custodial spouse - even if the amount for child maintenance was agreed upon by the two parties. Judges follow the Federal Child Support Guidelines to determine proper maintenance.

It should also be noted that if there is an existing order from Family Court or a previous separation agreement concerning maintenance, the Court of Queen’s Bench may make an order similar to these if the maintenance amount is still satisfactory to both parties. However, the Court is not bound by any previous agreement or order.

1. Variation of Maintenance Orders Made under the Divorce Act

Under the Divorce Act an application to vary or change the maintenance order can be made where the two former spouses are ordinarily residents of Alberta. Generally, a spouse is considered to be an ordinary resident of a province if he or she has lived in that province for at least 12 months prior to the divorce action.

If the spouses are not ordinary residents in the same province, they must follow the procedure outlined in the provincial legislation regarding the variation of maintenance when the parties live in two different jurisdictions. It is recommended that you obtain the services of a lawyer if this is your situation.

2. Appealing a Maintenance Order Made under the Divorce Act

If a spouse does not feel that the Juustice’s decision is correct, he or she can appeal to the Court of Appeal. Any appeal must be taken within 20 days of the date that the order was filed or served. Generally, the Appeal Court will be reluctant to change the Trial Judge’s decision if the amount of the maintenance is the only thing being challenged. However, each case will depend on its facts. For appeals, a lawyer should be consulted.

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Federal Child Support Tables

To view the Federal Child Support Guidelines and the appropriate Tables, please see www.justice.gc.ca/en/ps/sup/grl/glp.html. This information can also be obtained in printed form from the courthouse.

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Referral Numbers

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