When families go through a separation, the accompanying financial uncertainty can be overwhelming, especially when children are involved. While as a parent you want to ensure that your children’s needs are met, understanding your child support obligations and rights under family law may seem daunting.
In this post, we explore the Alberta child support system, focusing on when child support rights and obligations arise after separation and how to ensure that both parents are supporting their children financially.
Guidelines for Child Support in Alberta
Alberta child support is regulated by the Federal Child Support Guidelines for former married couples and the Alberta Child Support Guidelines for former adult interdependent couples.
These guidelines are largely the same in the mechanisms they use to determine the legal responsibility of a parent to pay child support.
The Child Support Guidelines consider a number of factors to determine how much child support is owed and by which parent(s), including:
- The number of children of the relationship
- The parents’ incomes
- The amount of parenting time each party has with the children
- The province in which the paying parent lives
An order for child support will make provisions for two different kinds of expenses that families incur related to their children:
- Section 3: These are fixed costs related to raising children, including their food, shelter, clothing, transportation, and hygiene products. These expenses are calculated based on a table, which applies uniformly to all child support awards.
- Section 7: These are also known as “special and extraordinary expenses,” and include extracurricular activities, childcare, dental and health related expenses, and post-secondary related expenses. Extraordinary expenses are calculated on a discretionary basis, often depending on whether these expenses are in the children’s best interest and are reasonable given the financial means of the parties. They don’t apply uniformly to all child support awards.
Every family comes with unique circumstances regarding their financial resources and parenting schedules, and these factors will help determine the amount of child support and who will pay support.
In short, child support is comprised of both (a) the parents’ obligation to support their children, and (b) the children’s legal right to financial support in accordance with the resources available to both parents.
What Initial Steps Must be Taken to Start Receiving Child Support?
Firstly, the parents must be separated in order for either parent to receive child support.
In Alberta, separation begins when both parties start living their lives separately and independently, even if there’s no formal separation agreement in place. Typically, one or both parents will move out of the family home or establish a separate living arrangement. Through their actions or communications, the parents should be clear with one another that it is their intention to end the relationship. Parties often live separately and apart before obtaining a court order for their legal separation.
Secondly, one or both of the parents must be eligible to receive child support.
In order to be eligible, a parent must have a relationship with their children. Courts will also consider the age of the children, the parents’ incomes, and the parenting arrangements agreed upon or ordered by the court – if a child doesn’t spend any time with either parent, that parent won’t typically be eligible to receive child support. Eligibility is a prerequisite to receiving financial support.
Thirdly, both parents must disclose their financial information so that the parties can determine a fair distribution of the resources available to the family for the purposes of child support calculations.
Failure to disclose financial information may result in imputation of income to the payor, which may or may not reflect their actual income. Section 21 of both of the Child Support Guidelines lays out exactly what is required for financial disclosure to be satisfied.
When Does Child Support Start After Separation?
One or both of the parents may be eligible to receive child support prior to a court order being in place; however, child support payments can’t be enforced until the court order exists. In the meantime, the parties can mutually arrange a child support agreement. In this situation, payments would ideally begin right away. As long as that arrangement works for both parties, the courts don’t need to make a determination.
If the parties are unwilling or unable to come to a child support agreement containing information about the amount of child support and who will pay, the parties will need to go to court. This is a more time-consuming legal process which requires numerous procedural steps specific to each family’s circumstances before a child support decision is awarded. Though the court system adds an element of unpredictability, seeking a judge’s help to determine child support can be beneficial if the parents require a decision to be made on their behalf, or if one spouse refuses to cooperate.
Typically, the courts will hold the parents to the standards outlined in the relevant Child Support Guidelines. Section 13(f) of both of these Child Support Guidelines states that a child support order must include “the date on which the lump sum or first payment is payable and the day of the month or other time period on which all subsequent payments are to be made.” Most often, child support payments will be ordered to begin on the first of the upcoming month.
If there is a discrepancy between the amount of child support paid before the order and the amount of child support ordered, the recipient parent may apply for retroactive child support dating back to the date of separation. Retroactive child support is never guaranteed, and the Court would take various additional considerations into account when making this order.
Do Child Support Payments Begin Automatically After Separation?
Child support payments are never automatic, although the paying parent has a positive obligation to voluntarily pay the recipient parent the full child support amount on time.
If a court order for child support is in place, the recipient parent has enforcement options available to them if the paying parent is unable or unwilling to uphold their child support obligations. One example of enforcement in Alberta is the Maintenance Enforcement Program (MEP), which the recipient parent would need to apply for. Through MEP, parties can record voluntary money paid for child support, enforce missed child support payments, and ensure that all banking and contact information is kept up to date.
Beyond wage garnishment, a recipient parent can obtain other remedies through a court application to enforce a child support order. These remedies could range from penalties to the paying parent, compensation for the recipient parent, and temporary imprisonment for non-compliance with the child support order.
How Long Does Child Support Last?
Child support must be paid as long as there is a “child of the relationship.”
If the parties were married, the Divorce Act defines the “child of the relationship” as a child of two spouses or former spouses who, at the material time,
- Is under the age of majority and who has not withdrawn from their charge; or
- Is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
If the parties were not married, the Family Law Act defines the “child” as a person
- Who is under the age of 18 years; or
- Who is at least 18 years old but not older than 22, and is unable to withdraw from his or her parents’ charge because they are a full-time student as determined in accordance with the prescribed guidelines.
Until such time as there are no children of the relationship, child support is owed and both parents must continue to support their children financially. Child support ends when there are no longer any children of the relationship.
How Kirk Montoute Dawson LLP Can Help You Navigate Child Support After a Separation
If you have recently separated from your former spouse or are considering what child support could look like post-separation, either as a recipient or payor of child support, please contact one of the family law lawyers at Kirk Montoute Dawson LLP for advice or representation. One of our lawyers would be happy to review your specific circumstances and provide you with guidance and next steps based on your individual situation and the child support laws which apply to you.
Written by Kyrie Bouscal