Spousal Support
& Child Support
Spousal & Partner Support
Upon the breakdown of a relationship, one party may be entitled to financial support.
You may be entitled to support based on any of the following groups:
01. Is there a pre-existing agreement in place that speaks to support?
02. Is there a need? Is one party unable to maintain themselves or enjoy a level of lifestyle approximating the on they left?
03. Is compensation required? Did one party give up income, earning potential, or employment 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 independent partners (often referred to as “common law” partners). Both Acts outline the same objectives to be considered in a support analysis.
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).
Child Support
Regardless of whether you are dealing with a divorce or a situation in which you are not married, a child has the right to be supported.
The Federal & Alberta Child Support Guidelines apply to divorcing parents.
The Alberta Child Support Guidelines apply to all child support applications that are not covered by the Divorce Act.
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 as prescribed by the Child Support Guidelines, and the Divorce Act having no such requirement.
Calculate a quick estimate of child support amounts payable.
One or both parties may have to pay additional 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.
This typically looks like the following basic example:
If Party A earns $75,000 and Party B earns $25,000 (with a total salary of $100,000), Party A will be responsible for 75% of section 7 expenses and Party B will be responsible for 25% of section 7 expenses.
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:
01.
Medical or dental expenses not covered by insurance that exceed the coverage by at least $100.00;
02.
Insurance premiums for medical or dental coverage for the child;
03.
Child care expenses incurred as a result of employment, education, disability and illness;
04.
Extraordinary expenses for primary schooling;
05.
Post-secondary schooling expenses;
06.
Extraordinary expenses for extracurricular activities (within reason).
It is often wise to seek legal advice regarding section 7 expenses, especially as they relate to extracurricular activities or in situations where there are significant expenses.
Child support is calculated differently when there is a shared or split parenting situation, where each party has the child 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.
Often, a set-off approach will be applied which significantly impacts the amount of child support payable. However, some circumstances may call for a more tailored approach based on expenses incurred by each parent.
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 payor has responsibility for an unusually high level of debts reasonably incurred to support the parties and their children prior to the separation or to earn a living;
(b) the payor has unusually high expenses in relation to exercising access to a child;
(c) the payor has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the payor has a legal duty to support a child, other than a child of the marriage, who is
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(i) under the age of majority, or
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(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 payor 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).
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Related Details
Child Support Variations:
Based on updated and current information, child support is typically recalculated every year based on current income information of the parties. Most child support orders and agreements include disclosure clauses that require each party to provide specified income information, usually tax return information, to the other party each year.
Either party may apply for a variation when they receive this information. The Court will consider applications to retroactively review if the appropriate amount of child support was paid in years past, depending on the circumstances.
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 wherever appropriate and assist you in negotiating an appropriate payment plan of any arrears in support.
Enforce & 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:
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Garnishee wages through an employer or a bank account;
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Register a lien on property or assets;
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Suspension of driver’s licence and vehicle registration; and
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Cancel passports.
Register your maintenance order or a maintenance agreement with the program.
Once registered, you will receive a personal identification number and access to your account is 24/7.
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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 are 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.