WHICH ACTS GOVERN SUPPORT PAYMENTS?
Married persons have a choice of whether to proceed under the Family Law Act or the Divorce Act. Although, if one party files for divorce then everything relating to the divorce will fall under the 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 spousal 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:
Have an agreement to become interdependent partners; or
Have lived together in a relationship of interdependence for at least three years continuously; or
Have lived together in a relationship of interdependence of “some permanence” (which could be for less than three years) with a child of 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 for child and spousal support under the Family Law Act through Provincial Court, or Court of King’s Bench.
WHAT IS SUPPORT?
Support is a term that refers to the money that is paid by one spouse or partner to his or her former partner and/or children. Parents are under a legal obligation to provide for their children’s needs. Support is used to pay for items such as food, shelter, schooling, clothing and medical expenses. Depending on the circumstances, support may include other items. Spousal support is also sometimes referred to as alimony or maintenance.
Support is usually a fixed sum paid on a regular basis biweekly or monthly. 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 between two spouses/partners concerning spousal or child support, this will be taken into consideration by the Court. However, Judges will make support orders based on the current incomes of the spouses/partners. If the situation changes, either spouse/partner can apply to change the support order.
CHILD SUPPORT
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 parent of the child.
A male person is presumed under the law to be a guardian of a child if:
He was married to the mother of the child when the child was born;
He was married to the mother of the child and the marriage ended less than 300 days before the birth of the child; (The marriage must have ended by nullification, judgment of divorce, or death)
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;
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;
He is registered as the father of the child on the child’s birth certificate (at both his and the birth mother’s request); or
A Court has found him to be the father.
These presumptions can be rebutted with evidence. The Court may order a DNA test to establish who the father is. If he refuses to provide a DNA sample, the Court may presume he is the father.
These presumptions do not apply in the following circumstances:
If there are a few individuals (more than one) that could be the father of the child.
If assisted reproduction resulted in the child’s birth.
A donor of reproductive material is not considered a parent if there was no intention that this material was to be used for personal reproductive use.
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 and whether the person intends to treat this child as their own. The person must either be a spouse of the child’s parent or have a relationship of interdependence with the child’s parent, that is of some permanence.
The determination of who is considered a parent changes slightly when assisted reproduction and surrogacy are involved. It is best to consult the Alberta Family Law Act ss 8.1 and 8.2, as well as a lawyer.
Who is a Child?
Under the Divorce Act, children are entitled to support when the child is:
under 18 years of age, or
18 or older, but is unable by reason of illness, disability or other cause to obtain the necessaries of life, or
over 18, a full-time student, and dependent on their parents’ financial support.
Under the Family Law Act, in Alberta, children are entitled to support when the child is:
under 18 years of age, or
18 or older, but is unable by reason of illness, disability or other cause to obtain the necessaries of life, or
over 18, a full-time student, and dependent on their 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.
The Child Support Guidelines
The Child Support Guideline that will be applicable to your situation depends on whether you are divorced, have applied for divorce, and where you and the other parent live.
Divorced or Have Applied for Divorce
You will use the Federal Child Support Guidelines if you are divorced or have applied for divorce, unless you and the other parent do not both live in a “designated” province, which includes Manitoba, Quebec, and New Brunswick. If you live in separate provinces or territories, then the Federal Child Support Guidelines still apply. If you and the other parent live in different countries and the divorce proceeding is under Canada’s Divorce Act then the Federal Child Support Guidelines will generally apply. You can consult with a lawyer in this situation to clarify which countries’ laws are applicable.
No Divorce or Have Not Applied for Divorce
If you were married and have separated or are not married, then Provincial and Territorial Child Guidelines apply.
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. However, the Court also takes into consideration any potential circumstances that would cause undue hardship. These might include high access costs (like having to travel long distances to see the children), high levels of debt, or a legal duty to support other children. The Court will also consider the relative standards of living for each of the parents in certain circumstances.
A Court will not allow a parent to escape their parental responsibilities simply by re-marrying. The Court will not permit the children of the first family to live at a significantly lower standard of living than those of the second. The Court will try to balance the rights of all the parties involved. This means that undue hardship is a very hard claim to make out. If an undue hardship claim is successful, the court may order the remaining support obligations to be paid out in a reasonable time. These obligations are the difference between what was awarded due to the undue hardship and what would have normally been awarded.
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. This arrangement to support the child must be reasonable and will not be found to be otherwise just because the agreed upon amount does not equal the amount set out by the Federal and Provincial Child Support guidelines. The Court wants to protect children and ensure that parents do not bargain away their child’s right to support.
Under the Divorce Act the Court may make an order on a parent to pay child support, on the application of the other parent, until the support order is determined by the court. This interim order must be done according to the appropriate Provincial and Federal Child Support Guidelines.
Calculating Child Support
Each spouse must disclose their financial information for the purpose of calculating child support. If one spouse refuses to reveal their finances, the Court will determine a fair value of what the spouse’s income is believed to be. This is called “imputing income” and can be done in certain circumstances, such as when the spouse is exempt from paying income taxes or when the spouse is legally required to disclose income and does not do so.
When you or your spouse is self-employed, special procedures apply for determining the income for child support purposes. It is helpful to consult a lawyer and/or an accountant to determine this income and the documents required to disclose this financial information.
The obligation of parents to disclose financial information is ongoing as the amount of support will change with any change in income. Parents should exchange financial information every year at an agreed upon date.
The calculation of child support can be quite complicated. The method of calculating the amount may change depending on the parenting time arrangement. It is recommended that parents see a lawyer or go to the Resolution Support Centre. Parents may also attend the Child Support Resolution (CSR) Project. If you do not have a lawyer and are applying for child support in the Court of King’s Bench you must attend Child Support Resolution. If you have a lawyer or are changing a child support order, then you cannot attend the CSR program. Your eligibility may also be affected if you are receiving income support.
Parents may also register in the Child Support Recalculation Program (RP). This avoids the need to go to the Court or a government office for yearly recalculations. RP recalculates future monthly child support based on the Child Support Guidelines tables. The service costs $77 per year for each parent. 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 child support amount will not change and there will be no service fee. To participate both parents must live in Alberta and the original order must have been based on the Child Support Guidelines. Either a recipient or payor of child support can choose to register with RP. For more information visit www.recalculation.gov.ab.ca.
Federal Child Support Tables
To view the Federal Child Support Guidelines, please see https://www.justice.gc.ca/eng/fl-df/child-enfant/fcsg-lfpae/2017/index.html. This information can also be obtained in print from the courthouse. Make sure that you use the table applicable to the province in which the payor lives.
The amount owed in child support is varies by province, how many dependent children there are, and the household income.
Support & Parenting Time
Support orders, parenting time, and contact orders are different from each other. A contact order is when the court grants an individual time to spend with a child, even if they are not a guardian of that child. Parenting time is for a guardian to spend time with and care for a child. Access to a child cannot be denied because child support is not being paid. If one parent denies access, the other parent cannot stop paying support. Only the Court can vary a support order.
A parent who is paying child support but not receiving 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 parenting or contact order.
Parents who wish to negotiate for parenting time and child support may get help through Family Mediation, available at the John E. Brownlee Building. This service is free if one of the spouses makes less than $40,000 per year.
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 able to take this course online or in-person. There is also a course for high conflict families called Parenting After Separation for High Conflict Families (PASHC).
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. However, the Court may order spousal support where one spouse has suffered a disadvantage because of the relationship or its breakdown, or where financial consequences arise from taking care of children. Spousal support may also be ordered to promote each spouse becoming self-sufficient within a reasonable period of time.
It is important to note that child support is always given priority over spousal support.
A group of academics and practitioners have created the Spousal Support Advisory Guidelines. These guidelines suggest a range of money a spouse may be awarded as support, 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.
Factors the Court Considers in Determining Spousal Support
Under the Divorce Act, the court must consider the following factors in making a spousal support order:
The health, needs and other circumstances of each partner including:
The length of time the spouses lived together.
The work each spouse performed while they were living together (if one spouse earned income while the other one remained at home to raise children).
If there are any orders or arrangements of support regarding either spouse.
Under the Family Law Act, the above factors are considered in making a support order as well as:
If the individual obligated to provide support to the other spouse or adult interdependent partner is legally required to support another individual.
If the individual required to pay spousal support lives with another individual, who contribute to household expenses
If the individual receiving spousal support lives with another individual, who contributes to household expenses.
Adultery: A spouse WILL NOT be denied support or given less assistance because they committed adultery (cheated on their spouse). When making a support order, the Court does not consider any misconduct of a spouse or adult interdependent partner unless:
It unreasonably precipitates, prolongs or aggravates the need for support, or
It unreasonably affects the ability to provide support (intentional unemployment, for example).
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. This means that when a child support order changes, its possible for a spouse to apply for changes to the spousal support order.
Types of Spousal/Partner Support Agreements
Spouses/partners may enter into two types of written agreements:
Where one spouse/partner agrees to pay support for the other spouse/partner.
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 to vary these written agreements in certain situations.
The court may not vary this written agreement unless it is inequitable and at least one of the following circumstances exist:
An individual entered into the agreement without having received independent legal advice.
After a support order was made the adult interdependent partners married.
Removal of the barriers that would prevent the remarriage of the other spouse within that spouse’s faith was a consideration in the making of the spousal agreement.
One adult interdependent partner or spouse is a recipient of government financial assistance and does not receive reasonable support from the other partner.
For more detailed information on this topic, please speak with a lawyer.
Please note that this is only applicable to spousal support. Parents may not agree to not pay child support. Child support is the right of the child, and cannot be given up by parents.
Types of Payment
Support is usually ordered as a fixed sum, paid on a regular basis monthly or biweekly. 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.
Unlike child support orders, spousal and partner support orders create tax consequences for each party.
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
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.
Possession of the Home and Property
A spouse or adult interdependent partner may be given the exclusive
right 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 or prevent a partner from entering or being near 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.
The Maintenance Enforcement Program
Support orders are automatically filed with the Director of Maintenance Enforcement, but in practice they are only enforced when one of the spouses/parents/partners registers in the program. 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 who then directly deposits the money to the person receiving support. Although MEP does not generally charge any fees for services, sometimes penalties and other fees can apply.
The Director of Maintenance Enforcement has broad powers to ensure that a parent, spouse, or adult interdependent partner pays support. The Director may do the following:
Make deductions from wages (maximum of 40% gross wage);
Take money from bank accounts, mutual funds, rent or contract fees;
Garnish income tax refunds, GST rebates, CPP & EI income
The debtor may be prevented from disposing of property, and MEP may seize assets including vehicles, shares and bonds, real estate
The debtor may have their passport, driver’s licence, registration, licence plates, or abstracts restricted or suspended;
Recreational licences for fishing and hunting may be restricted;
If assets are being kept in the name of a company or someone else’s name, MEP can apply for a court order allowing MEP to seize the assets
Failure to make child support payments may be registered as bad debt and affect credit rating. The Court can issue a warrant to arrest a payor who tries to leave Alberta in an attempt to avoid making payments. 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 MEP has also introduced deterrent penalties:
a. A $40 penalty for each month that a payment is late or not made at all;
b. A $51.50 penalty for payments returned for non-sufficient funds or ‘stop payments’;
c. A $205 penalty for failure to return a Statement of Finances when requested;
d. A $51.50 penalty to discourage direct payment between debtors and creditors;
e. A $51.50 service fee for each time that a party uses a substitutional service to serve the other with documents;
f. A $205 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. 20% of the interest collection on late payments
If the parent, spouse, or adult interdependent partner who is owed payments is on Income Support (social assistance), they 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.
To opt out of the program, the receiving parent must 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 of these forms (and other forms) are available on the Maintenance Enforcement website [https://www.alberta.ca/mep-forms.aspx] If you are unable to obtain the forms online, contact MEP at 780-422-5555.
Non-Payment of Support
Occasionally, orders for support are not paid. Sometimes a parent will default for financial reasons, such as the loss of employment. In this situation, the defaulting parent should apply to the Court for a review of the support order. The amount of support payable 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.
The Court may also give a parent more time to pay if they acquired debts after the relationship ended as a result of honest efforts to maintain the children’s standard of living. If a parent has difficulty making payments because they have spent money on things that are solely for their own pleasure, the Court will not be very sympathetic and the children’s claim for support will take priority.
Variation of Support Order
Because parents will exchange financial information on a yearly basis under the Child Support Guidelines, usually there is 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 in recalculating their child support amount without having to go to Court. For more information on the RP visit www.recalculation.gov.ab.ca.
So long as a child remains eligible for child support, a Child Support Order will rarely be changed even if the parents remarry or live in common law relationships.
The Court does not want to allow the payor parent to escape their 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 may be 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
The payor has no say in how the basic maintenance payments are to be spent. However, they may have a say about spending for extra-curricular activities. If there is clear and convincing evidence that the support payments are being spent improperly, the paying parent may apply to the Court to change the support order.
Spousal Support Orders 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 payor can show that there has been a change in their circumstances or new, substantial information has since become available since the last support order was made. Similarly, if the income of the recipient changes, the payment amount may also be varied upon application.
Appealing a Support Order
If a spouse/partner/parent does not feel that the Justice’s decision is correct, they 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.
If there is an existing order from Family Court or a previous separation agreement concerning support, the Court of King’s Bench may make an order similar to these if the support amount is still satisfactory.
WHERE CAN I GET HELP OR MORE INFORMATION?
Edmonton Community Legal Centre (ECLC)
Telus House, South Tower
Second Floor, 10020 100 Street NW
Edmonton, AB T5J 0N3
Ph: 780-702-1725
Web: www.eclc.ca
Edmonton Community Legal Centre (ECLC) provides legal services for low-income Albertans in certain areas of family and civil law. These services include free legal information, referral, and legal education. ECLC may also be able to provide legal advice if you fall within their eligibility criteria. Much of their legal information can be found on their website, as well as the time, dates, and locations of their public legal education programs. Additionally, ECLC has a fee waiver program if your income and document fall within their guidelines.
Edmonton Resolution Support Centre
8th Floor – John E Brownlee Building
10365 97 Street NW
Edmonton, AB T5J 3W7
Ph: 780-415-0404
Edmonton Resolution Support Services provides various services to assist individuals dealing with a family or civil matter. They have numerous free services, such as Family Court Counsellors, Family Mediation, Child Protection and Intervention Mediation, Civil Mediation, and assistance on Court Forms and Orders.
Elizabeth Fry Society of Northern Alberta
700 - 10242 105 Street NW
Edmonton, AB T5J 3L5
Contact:
Ph: 780-421-1175
Web: www.efrynorthernalberta.com
The Elizabeth Fry Society of Edmonton is aimed providing at-risk women and girls with various programs and services. Programs include the Aboriginal Women's Program, Criminal Court Program, Employment Services Program, Financial Literacy Program, Legal Clinics, Imprisonment Programs, and youth programming. Services include smudging, laundry facilities, and drop-in workshops.
Legal Aid Society of Alberta
Revillon Building
Suite 600 – 10320 102 Avenue
Edmonton, AB T5J 4A1
Toll free: 1-866-845-3425
Web: www.legalaid.ab.ca
The Legal Aid Society of Alberta functions to assist low-income Albertans with certain types of legal matters. Assistance is provided through information, referrals, advice, and/or representation, depending on what your matter is and which eligibility guidelines you meet
Native Counselling Services of Alberta (NCSA)
14904 121A Avenue NW
Edmonton, AB T5V 1A3
Ph: 780-451-4002
NCSA provides numerous programs working to support and strengthen Aboriginal individuals and families. These programs include court support for certain types of matters, assistance with Child and Family Services matters, housing and support for at-risk youth, and Aboriginal healing lodges for offenders. They do not provide therapy or counselling.
Provincial Court Family and Youth Court
1A Sir Winston Churchill Square
Edmonton, AB T5J 0R2
Ph: 780-427-2743
Web: www.albertacourts.ca
The Provincial Court Family Clerks are able to assist in providing information for Provincial Court Family matters regarding judicial procedures, court appearances, trial dates, adjournments, outstanding warrants, summonses, subpoenas, witness fees, and payment of fines. It is not their role to provide you with legal advice.
Student Legal Services – Family Law Project
11036 88 Ave NW
Edmonton, AB T6G 0Z2
Ph: 780-492-8244
Admin: 780-492-2226
Web: www.slsedmonton.com
The Family Law Project of Student Legal Services consists of caseworkers, who are law students and who provide basic legal information on various topics in family law, such as divorce, separation, parenting time, child and spousal support ("maintenance"), matrimonial property, and adult interdependent relationships ("common law"). They can also provide information on various resources if you require more in-depth assistance. The caseworkers are also able to act as an agent in certain family law matters, such as simple child support and variation orders and their related applications. These caseworkers are able to provide free assistance and will work on your matter under the guidance of an advising lawyer. Additionally, the Family Law Project also provides a Do-Your-Own-Divorce Clinic every few months. Keep in mind that the services available are subject to eligibility criteria, except for legal information and referrals.