Spousal Support & Child Support

Spousal and Partner Support

Upon breakdown of a relationship, one party may be entitled to support.

Entitlement to support is based generally on the following:

1. Is there a pre-existing agreement in place that speaks to support?
2. Is there a need? Is one party unable to maintain themselves or enjoy a level of lifestyle approximating the one they left?
3. Is compensation required? Did one party give up income, earning potential or employments opportunities because of the relationship?

SPOUSAL/PARTNER SUPPORT IS COMPLICATED.

A spousal or partner support analysis differs depending on which legislation the parties fall under. The Divorce Act applies exclusively to married couples looking to divorce, while the Family Law act applies both to parties who have not yet filed for divorce, or adult interdependent partners (often referred to as “common law” partners). Both Acts outline the same objectives and similar factors to be considered in a support analysis. The Family Law act, however, also considers the effect of other individuals in the parties’ households on the parties’ abilities to pay or needs to receive support.

It is not just about entitlement. Once it is determined or agreed that someone is entitled to get support, a determination has to be made about how long and what amount of support should be paid. This evaluation involves examination of the nature of the relationship and the effect of its breakdown on the parties as well as the earning capacity of each spouse. That said, for a more detailed analysis, please see information about the Spousal Support Advisory Guidelines (which helps us determine a possible range of amount and duration of support) here.

Child Support

Regardless of whether we are dealing with Divorce or situation involving unmarried individuals, a child has the right to be supported.

The Federal and Alberta child support guidelines. The Federal Child Support guidelines apply to divorcing parents and are found here: Federal Child Support Guidelines.

The Alberta Child Support Guidelines apply to all child support applications that are not covered by the Divorce Act and are found here: Alberta Child Support Guidelines.

BASIC MONTHLY CHILD SUPPORT

In a simple circumstance in which one parent has primary care of the child and the other parent has the child less than 40% of the time, the basic amount of child support is calculated according to the amount determined under section 3 of the Alberta or Federal Child Support guidelines. Child Support may extend past when the child turns 18 depending on whether or not the child can become financially independent. The Acts have different definitions regarding a child’s entitlement after turning 18, with the Family Law Act requiring children to be in full-time education, and the Divorce Act having no such requirement.

Calculate a quick estimate of child support amounts payable here.

EXTRAORDINARY EXPENSES

The person paying child support (the payor) may also have to pay additional child support for special expenses. These special expenses are outlined in Section 7 of the guidelines and are called Section 7 or extraordinary expenses. These expenses are typically shared between the parents. Often these are shared in proportion to the parents incomes, but other factors may be relevant that change how these are shared. Many of these section 7 expenses are tax deductible to the payor, and only the after tax amount is typically shared. Expenses that may qualify as section 7 expenses may include the following:

1. Medical or dental expenses not covered by insurance that exceed the coverage by at least $100.00;
2. Insurance premiums for medical or dental coverage for the child;
3. Child care expenses incurred as a result of employment, education, disability and illness;
4. Extraordinary expenses for primary schooling;
5. Post-secondary schooling expenses (under the Family Law Act this is only included until the child turns 22 years of age);
6. Extraordinary expenses for extracurricular activities (within reason).

It is often necessary to have legal advice regarding section 7 expenses, especially as they relate to extracurricular activities or expenses for an adult child.

CHILD SUPPORT IN SHARED OR SPLIT CUSTODY SITUATIONS

Child support is calculated differently when there is a shared or split parenting situation, where each party has the children more than 40% of the time, or each party has one or more of the parties’ children in their care. The court then calculates child support based on section 9 of the Federal or Alberta Child Support Guidelines, which includes consideration of:

(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

UNDUE HARDSHIP

In rare circumstances, the Court may consider the payor’s lack of ability to pay, and reduce the amounts of support for reasons of undue hardship. It can be difficult to establish undue hardship, and you should seek legal advice if you think this is relevant for your situation. Circumstances that may result in the Court finding undue hardship include:

(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising access to a child;
(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
• (i) under the age of majority, or
• (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

Support orders and agreements can be enforced by the Alberta Maintenance Enforcement Program (MEP).

AS STATED ABOVE, THE AMOUNT THAT EACH PARENT WILL HAVE TO PAY UNDER SECTION 7 OF THE GUIDELINES IS OFTEN PRORATED.

This means that if you add together what both parents make, and divide one parents (say parent A) salary by the total amount earned by both parents, you will come up with the percentage of total income that parent A makes. This is the percentage of the section 7 expenses that parent A will have to pay.

So, if parent A makes $50,000 and parent B makes $50,000, the total of both parent’s salaries is $100,000. $50,000 dollars represents 50% of the total income. As such, each parent will be responsible for paying 50% of whatever the section 7 expense is found to be. In another example, if parent A makes $25,000, and parent B makes $75,000, then parent A makes 25% of the total amount earned by both parties, and therefore is responsible for 25% of the special expenses.

Changing or varying amount of child or spousal support

Child Support Variations

Child Support is typically recalculated every year based on current income information of the parties. Most child support orders and agreements include income disclosure clauses that require each party to provide their tax return information to the other party each year. Either party may apply for a variation when they receive this information, or before. The Court will usually recalculate orders back up to three years, but sometimes will consider further back.

Parties may be able to register eligible orders with the Alberta Child Support Recalculation Program to have their orders recalculated each year.

Either party may make an application to the court to recalculate orders based on new circumstances including changes of income of either party or changes in the extraordinary expenses for the child.

Orders may have to be reviewed when a child turns 18 to determine if child support is still payable.

We can help you make applications or provide you with new calculations to determine the correct amounts of support payable or owed.

SPOUSAL SUPPORT VARIATIONS

Certain Spousal Support orders or agreements can or must be reviewed during or after the term of the order/agreement. This can involve an entirely new review of entitlement, quantum (amounts) or duration (length of time) of the spousal support award based on new and previous circumstances. We can assist you in this process.

STAYS OF ENFORCEMENT

At times, a person owing support (the payor) encounters financial difficulty and ends up with enforcement measures like garnishees, vehicle registration suspensions, and license or passport expenses. We can help you make an application to stay these enforcement measures and assist you in negotiating an appropriate payment plan of any arrears in support.

Maintenance Enforcement

ENFORCE AND COLLECT

The Maintenance Enforcement Program (“MEP”) enforces maintenance orders or a maintenance agreement for a spouse, child or interdependent partner.

This is at no cost to the recipient of the support (the “Creditor”). Only one person needs to register, the Creditor or the person paying the support (“the Debtor”).

Some methods used by MEP to enforce payment by the Debtor:

• Garnishee wages through an employer or a bank account;
• Register a lien on property or assets;
• Suspension of driver’s licence and vehicle registration; and
• Cancel passports.

Learn how to register your maintenance order or a maintenance agreement with the program here.

Once registered, you will receive a personal identification number and access to your account is 24/7.

Spousal Support and Child Support

Interjurisdiction Support Applications

There is a court process for seeking support for parties who lives in different jurisdictions.

If you live in Alberta but your former partner does not, you can still make an application in Alberta seeking child and partner support. The application must be provided to the Court in Alberta with the appropriate documents. Provided there is no missing information and the information has been sworn correctly, it will be forwarded on to the jurisdiction of your former partner. A judge in the jurisdiction of your former partner will then determine if support will be awarded, if more information is needed, or if a hearing is required. You will be provided with a copy of that decision and next steps, if any.

The same process applies if you do not live in Alberta, but your former partner does live in Alberta. An Alberta Court will review the application for support, and will first apply the laws of Alberta to that decision, followed by the law of the jurisdiction who forwarded the application.

If you the responding party to a support application, you will receive a copy of the application and it will be heard in the jurisdiction in which you reside. If you do not file responding materials, the court may make an order in your absence.

In Alberta, inter-jurisidictional support is governed by the Interjurisdictional Support Orders Act.