Child and Spousal SupportIn partnership with the

Edmonton Public Library

Agenda1. Introductions2. How this evening’s presentation will

proceed3. Housekeeping – washroom locations4. You have three things in front of you:

1. A copy of this PowerPoint2. A resource sheet 3. A feedback form that we ask that you fill

out before you leave tonight to help us improve these sessions.

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DisclaimerThe information presented during

this session may have limited application to your particular

situation.  The lawyers who are here this evening CAN provide legal

information that may give you a greater understanding of how the

law might apply to your own situation.  The lawyers who are here this evening CAN NOT provide you

with individual legal advice.

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Contents1. Spousal Support

A. IntroductionB. Who can applyC. The Law of Spousal SupportD. Advisory GuidelinesE. Miscellaneous Issues

2. Child SupportA. Federal Child Support GuidelinesB. Basic Questions

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ContentsB. Basic Questions

i. Which children are entitled to support?ii. Parenting arrangementsiii. “Guideline incomes”iv. Adjustments v. Special expenses

C. Other Issuesi. Maintenance Enforcement Programii. Child Support Recalculation Programiii. Retroactive Child Supportiv. Applications

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1. Spousal and Adult Interdependent Partner Support

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A. Introduction Spousal support is determined using a

very different set of considerations than

child support.

Spousal support is highly discretionary

and is sometimes more challenging to

predict and/or negotiate.

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B. Who is Able to Apply for Spousal Support?

Married spouses can apply for spousal

support under the Divorce Act or the

Family Law Act.

Unmarried individuals can only apply

under the Family Law Act.

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B. Who is Able to Apply for Spousal Support? An unmarried person must qualify as an

“adult interdependent partner”.

Designation based on the following factors :

is the relationship conjugal?

is it exclusive?

what are the household and living

arrangements?

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B. Who is Able to Apply for Spousal Support?Interdependence factors (cont.):

do people hold themselves out as a couple?

have they, in some way, formalized their

relationship with each other?

is there financial interdependence?

care and support of children?

ownership, use and acquisitioned property

together?

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C. The Law of Spousal Support

In cases involving children, child

support always takes priority.

We look at both factors (what does

the court consider?) and objectives

(what are we trying to achieve)

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C. The Law of Spousal Support

Factors include:

how long have the parties inhabited a

residence together?

what functions did they carry out when

they lived together?

is there any order or agreement in place

between them?

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C. The Law of Spousal Support

Factors (cont.):

what are their means (income and

other financial resources)?

what are their needs (what do they

need to live on)?

what are their conditions (i.e. presence

of children, health, special needs etc.)?

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C. The Law of Spousal Support

Objectives are:

to address and economic advantage

or disadvantage either party

experienced as a result of the

marriage or the separation;

to relieve economic hardship;

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C. The Law of Spousal Support

Objectives are:

to deal with financial consequences of

looking after children, over and above child

support;

to promote economic self-sufficiency of

each person within a reasonable period of

time.

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C. The Law of Spousal Support

Four basic steps:

1. Entitlement: Should a spouse

receive support?

2. Form: How should it be paid?

Periodic or lump-sum?

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C. The Law of Spousal Support

Four basic steps:

3. How much? - What amount seems appropriate?

4. How long? – How long should payments be continued?

a) Indefinitely

b) Time limited

c) Subject to review

d) Other options

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D. What are the Spousal Support Advisory Guidelines?

Only advisory.

They offer some guidance about what a

range of amount and duration might

look like.

With or without child support.

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E. Miscellaneous Issues

The court is able to make “interim” as

well as “final” awards.

Spousal support orders are enforceable

through the Maintenance Enforcement

Program.

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E. Miscellaneous Issues

In certain cases the Courts will consider

awards of retroactive spousal support

The law is varying a spousal support order

is complex and not straight forward; this

is where legal advice is usually needed.

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2. Child Support

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Child SupportA child support application can be

made by:the child;a parent of guardian;someone who has control or care

of the child; and a few others.

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Child Support

Almost always identical regardless of whether parents are married, unmarried, or have never lived together.

There are two acts that govern Child Support, the Divorce Act and the Family Law Act.

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A. Federal Child Support Guidelines The rules for calculating the amount one

parent must pay to the other parent to help support their child or children.

Based on studies of average costs of raising children; each province has their own tables because of different tax rates and costs of living.

These guidelines are mandatory with certain areas of departure and deviation.

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Structure of the Guidelines FCSG set out some tables to show

how much child support parents should pay.

Amounts are: based on number of children; driven solely by income of payor (the

party paying the support); not taxable or deductible; “global” amounts.

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Section 7, Special Expenses Based on the idea that not every

household is the same.

S. 7 is an attempt to customize child support based on the presence of additional expenses.

Normally, parents are expected to share these expenses equally.

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B. Basic Questions

In any child support case there are some

basic questions that need to be answered:

i. Which children are entitled to child support?

ii. What is the parenting arrangement?

iii. What are the “guideline incomes” of the

involved parents?

iv. Are there any adjustments needed to move

off the amounts listed in the FCSG tables?

v. Are there additional “special expenses” to be

considered?

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i. Which Children are Entitled to Child Support?

Children under the age of 18 who have

not withdrawn from the charge of their

parents.

Children over the age of 18 may be

entitled if they meet certain conditions,

outlined on the next slide.

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i. Which Children are Entitled to Child Support?

Under the Family Law Act:

if they are between the ages of 18

and 22; and

if they are in a full-time course of

education.

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i. Which Children are Entitled to Child Support?

Under the Divorce Act:

if disability or illness that prevents

them from living without the aid of

their parents; or

they are enrolled in post-secondary

education

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i. Which Children are Entitled to Child Support?

Under the Divorce Act:

Parents can be obliged to pay child

support if they have “stood in the

place of a parent”.

Step-parent obligations are subject to

discretion.

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ii. What is the Parenting Arrangement?

The FCSG are based on a traditional

parenting arrangement where one

parent has primary care of the child

and the other sees them weekends

or mid-week.

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ii. What is the Parenting Arrangement?

When a parent has more than 40% of

the time with the child, the simple

table calculations may not produce a

fair result.

Under s. 9 of the FCSG, these

inequalities can be reduced.

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iii. What are the “Guideline Incomes” of the Parties?

Federal Child Support Guidelines use

the gross incomes.

All sources of income in a tax return

are used.

Start by looking at Line 150 of tax

return.

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iii. What are the “Guideline Incomes” of the Parties?

Income determinization is easy for T-

4’ed employees and harder for self-

employed individuals or individuals

who are paid by corporations they

own.

The 3 most recent returns are used

and patterns in income are observed.

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iii. What are the “Guideline Incomes” of the Parties?

Is the payor a shareholder of a

company?

Possible to include all or part of “pre-

tax” income of that corporation.

Must consider if the wages or fees are

paid to “non-arms length” individuals.

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iii. What are the “Guideline Incomes” of the Parties?

Is the payor a shareholder of a

company?

Possible needs involve accountant

to provide guidance on more

complicated income

determinization cases.

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iii. What are the “Guideline Incomes” of the Parties?

Income can be “imputed” or

attributed to someone when:

they are intentionally

unemployed or underemployed;

they aren’t taxed on their income;

income and been diverted;

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iii. What are the “Guideline Incomes” of the Parties?

Imputed income (cont.):

they haven’t disclosed financial

information when they were supposed

to;

they are unreasonably deducting

expenses from business income; or

other circumstances.

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iv. Are there Adjustments Needed to Move off the Table Amounts?

Adjustments might need to be made if:

s. 9 applies,

a person is “standing in place of a

parent”,

the income is over $150,000,

undue hardship, or

adult children.

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v. Are the Additional Special Expenses to be Considered?

Important to remember that not every

household with children is the same.

S. 7 is discretionary – necessity of

expense in relation to child’s best

interests, and “reasonableness” of the

expense.

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v. Are the Additional Special Expenses to be Considered?

S. 7 (special) expenses include:

after tax cost of child care needed for

parent’s employment or schooling,

children’s portion of premiums for

medical/dental insurance coverage,

the uninsured portion of health care costs

(dental, medical, orthodontic, optometric,

etc.)

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v. Are the Additional Special Expenses to be Considered?

S. 7 (special) expenses (cont.):

extraordinary cost of primary or

secondary school (e.g. some tutoring,

some private schooling, etc.).

Expenses for post-secondary education.

Extraordinary expenses for extra-

curricular expense.

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C. Other Issuesi. Maintenance Enforcement Program

ii. Child Support Recalculation Program

iii. Retroactive Child Support

iv. What is involved in making an

application in Court for child support?

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i. Maintenance Enforcement Program

A voluntary program to collect child

support.

They only enforce court orders, not

written agreements.

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i. Maintenance Enforcement Program

If payments made privately are on time

may be best to opt out.

But if payments are late, or causing

strife, register.

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ii. Child Support Recalculation Program

Administrative service to help parents

recalculate child support based on

current tax information.

Not useful for self-employed or complex

income determinizations.

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ii. Child Support Recalculation Program

Parents must have valid court order (or

binding agreement).

Modest cost.

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iii. Retroactive Child Support

The Supreme Court of Canada indicated that

4 things have to be considered:

1. Is there a reasonable excuse for what

a recipient didn’t seek and order for

child support earlier?

2. Has there been any “blameworthy

conduct” on the part of the payor?

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iii. Retroactive Child Support

4 things (cont.):

3. What were the circumstances of

the children during the time

support was not paid?

4. Would an award of retroactive

child support cause hardship to

the payor?

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iii. Retroactive Child Support

These awards are discretionary, not

automatic.

Each case considered on its own facts.

If an award is appropriate, it generally

doesn’t go back more than 3 years

unless there was blameworthy conduct.

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iv. What is involved in making an application in Court for Child Support?

If income of payor is unknown, you

can file and serve a document known

as a “Notice of Disclosure”

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iv. What is involved in making an application in Court for Child Support?

Applicant must have:

pay stubs for last 3 months;

financial statements for any company that

the parent has 1% or more shares in;

a certificate of attendance from “Parenting

After Separation” course. 

any additional income and financial

information.

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iv. What is involved in making an application in Court for Child Support? An application can be made either under the Divorce

Act or the Family Law Act and may be in either Court

of Queen’s Bench or Provincial Court (Family and

Youth). Documents can be found online along with

instructions at:

Family Law Information Centre:

www.albertacourts.ab.ca/familylaw/

Useful information can also be found on the Student

Legal Services website: www.slsedmonton.com/family/

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Reminder

Please fill out the feedback forms. Your

input is essential in helping us to

improve future sessions.

56

DisclaimerThe information presented during

this session may have limited application to your particular

situation.  The lawyers who are here this evening CAN provide legal

information that may give you a greater understanding of how the

law might apply to your own situation.  The lawyers who are here this evening CAN NOT provide you

with individual legal advice.

57