CHILD SUPPORT ALBERTA | GUIDELINES FOR CHILD SUPPORT
QUESTIONS ABOUT CHILD SUPPORT
Our family lawyers at Queck & Associates offer a depth of knowledge that is priceless when resolving child support issues between separating spouses or partners. Child support can be a stressful part of any divorce or separation, and one of the most common fears about child support is that one parent will be required to pay too much, or that the other will receive too little. Queck & Associates’ team of family lawyers are able to ensure that your children’s best interests remain protected while exploring various strategies to secure the best outcome for you and your family.
ALBERTA CHILD SUPPORT
Throughout all of Canada, including Alberta, child support is generally determined and calculated pursuant to the Federal Child Support Guidelines, which are part of the Divorce Act. The Divorce Act applies to children whose parents were married. If you and your ex-partner were never married, the Family Law Act of Alberta will technically apply. That being said, the Family Law Act uses the same guidelines as the Divorce Act to determine whether child support is payable, and if so, the proper amount of child support.
A free child support calculator is available on the Department of Justice website: https://www.justice.gc.ca/eng/fl-df/child-enfant/2017/look-rech.aspx. However, this calculator is only for very basic calculations or to get a rough idea of what the child support amount would be in Alberta. For a better idea based on the specific circumstances of your family, it is best to get the advice and expertise of a family lawyer.
CALCULATING CHILD SUPPORT
Whether or not child support is payable and in what amount depends on three main factors:
- Is there at least one child that is dependent on at least one spouse/partner?
- Does the child(ren) live with at least one spouse/partner?
- What are your and your ex-spouse/ex-partner’s annual incomes?
WHO IS A PARENT?
For most families, this is a pretty straightforward answer. However, in situations where new partners or spouses have become part of the family, someone who is not a biological parent of a child can still be responsible for paying child support. The legal term for this is “in loco parentis”, which is Latin for “in the place of a parent”. Whether or not this applies depends on the consideration of specific legal factors. But generally speaking, if someone is acting in the role of a parent, even if the child is not biologically theirs, there is a good chance that they may be obligated to pay child support.
WHO IS A CHILD?
Child support is generally payable for all dependent children of a marriage or relationship. The key word here is “dependent”. If a child is dependent on at least one parent, then support is payable. In most situations, all children under the age of 18 are assumed to be dependent. However, if a child is not living with either parent (for example, living with their grandparents) then child support is most likely not payable to either parent even if the child is under 18.
Children over 18 can also still qualify for child support if they are still dependent. The most common example are children who are dependent due to illness or disability. In recent years, many court decisions have come out establishing that children who are over 18 but are full-time students can still be considered dependent on their parents and therefore eligible for child support. This eligibility depends on a combination of many factors, such as availability of RESPS, part-time income, and scholarships to cover the child’s living expenses. Whether or not this applies to your family will depend on a careful consideration of all the relevant factors.
DIFFERENT TYPES OF CHILD SUPPORT
Different amounts of child support are payable in different situations. If one parent has primary parenting of the child(ren), then they would request Section 3 child support pursuant to Section of the Federal Child Support Guidelines. If the child(ren) lives roughly equally with both parents, then both parents would be entitled to request Section 9 child support. In that case, the amount paid is based on the difference between the two amounts payable by each parent, which we generally call an “off-set” amount.
If you are a salaried employee, then your income for child support purposes (referred to as your Guideline income) is usually taken from Line 150 of your annual tax return. But if you are self-employed, if you have a business, corporation, or partnership, or if you receive income from a trust or any other non-conventional source, your Guideline income will have to be carefully determined to make sure that the correct child support amount is being paid.
To determine your or the other parent’s Guideline income, lawyers will request the following documentation listed under Section 21 of the Federal Child Support Guidelines:
(a) a copy of every personal income tax return filed by the spouse for each of the three most recent taxation years;
(b) a copy of every notice of assessment and reassessment issued to the spouse for each of the three most recent taxation years;
(c) where the spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the spouse’s employer setting out that information including the spouse’s rate of annual salary or remuneration;
(d) where the spouse is self-employed, for the three most recent taxation years
(i) the financial statements of the spouse’s business or professional practice, other than a partnership, and
(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the spouse does not deal at arm’s length;
(e) where the spouse is a partner in a partnership, confirmation of the spouse’s income and draw from, and capital in, the partnership for its three most recent taxation years;
(f) where the spouse controls a corporation, for its three most recent taxation years
(i) the financial statements of the corporation and its subsidiaries, and
(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;
(g) where the spouse is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements; and
(h) in addition to any income information that must be included under paragraphs (c) to (g), where the spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information.
If this information is not provided, a court can impute an income to you and also impose fines until you comply and provide the necessary information to determine your Guideline income.
CHANGING CHILD SUPPORT
Child support should be updated every year as each parent gets their updated income information. Child support should also be updated or reviewed whenever there is a significant change in the circumstances of the parents or child(ren). Legally, we refer to this as a “material change”. That being said, not every change is a “material change” and child support cannot always be changed
SECTION 7 EXPENSES
In addition to base child support, parents are also expected to cover certain expenses for their children. These expenses are called “Section 7 Expenses”, as they come from Section 7 of the Divorce Act.
The list of standard Section 7 Expenses (taken directly from the Federal Child Support Guidelines) is as follows:
(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
Parents can also agree to include additional expenses, such as school fees and supplies. And in shared parenting arrangements, additional expenses can also be included.
Unlike base child support, there is no flat amount that one parent is expected to pay to the other for Section 7 Expenses. Instead, Section 7 Expenses are paid proportionate to each parent’s income. For example, if Parent #1’s income is $100,000 per year and Parent #2’s income is $60,000 per year, then Parent #1 might responsible for paying 60% of Section 7 Expenses and Part #2 might be responsible for paying 40% of Section 7 Expenses. The exact percentages depend on incomes, number of children, and which parent the children live with. For more information, contact our office to speak with any of the family lawyers at Queck & Associates.
RETROACTIVE CHILD SUPPORT
Child support is supposed to commence as soon as the parents separate. However, there are many situations in which this may not apply. For example, if the parents have technically separated but are still living in the same house. It also often takes people weeks, months or even years to be in a position where they are ready to pursue child support payments. Or, one parent may not cooperate with the other parent’s efforts to set up child support payments. If that applies to you, you may be able to pursue retroactive child support.
Whether or not you are entitled to retroactive child support requires the application and evaluation of numerous legal factors. To discuss whether this may be an option for you, contact our office for a consultation with one of the Queck & Associates family lawyers.
CHILD SUPPORT AGREEMENTS FOR YOUR FAMILY
If you and the other parent are on the same page as each other or simply want to avoid the involvement of the courts, you can set up child support payment through an Agreement. This can be a Child Support Agreement that is specifically about child support, a Support Agreement, which also includes partner or spousal support (if applicable), or a comprehensive Separation Agreement, which would address and settle all aspects of your separation or divorce.
To determine if an Agreement would suit your interests, and which type of Agreement would be best for you, please contact any of the Queck & Associates family lawyers for a consultation or learn more about other types of legal family agreements: Mediation, Collaborative Law, and Separation Agreements.
CHILD SUPPORT ORDERS
If a parent refuses to pay child support, there are steps you can take to enforce it. This first step is usually to bring an Application to have child support established. In Alberta, this is possible through both the Provincial Court and the Court of Queen’s Bench. In order to be successful in your Application, you will need to provide certain forms of evidence through Affidavits and Exhibits. If your Application is successful, you will receive a Child Support Order, which you can then enforce. All of the family lawyers at Queck & Associates are experienced in bringing Applications and securing Child Support Orders in both Provincial Court and the Court of Queen’s Bench.
MAINTENANCE ENFORCEMENT PROGRAM
Once you have a Child Support Agreement or a Child Support Order, you can register with the Maintenance Enforcement Program (commonly referred to as “MEP”). You can set up payments through MEP so that you and the other parent do not have to coordinate payments together. You can also request reimbursement from the other parent for their portion of any Section 7 Expenses. Most importantly, MEP has the ability to take enforcement actions if the other parent does not pay their child support. For example, MEP has the ability to suspend someone’s license or passport, garnish wages or tax returns, as well as numerous other actions to compel the other parent to make their child support payments.
It is important to have the proper wording in your Child Support Agreement or Child Support Order to be able to use MEP’s services. For more information, contact our office to speak with any of our family lawyers.
CHILD SUPPORT RECALCULATION PROGRAM
The Government of Alberta also offers a program called the “Child Support Recalculation Program”. This program allows you and the other parent to update the child support amount without involving lawyers. However, to be eligible for this program, your income information needs to be very straightforward.
For more information on the Child Support Recalculation Program visit the Government of Alberta website at https://www.alberta.ca/child-support-recalculation.aspx. To discuss whether this would be an option for you, feel free to contact our office and arrange for a consultation with any of our family lawyers.