Many people going through a separation or divorce often find the process and the law confusing and don’t know where to look for answers.  One of the most common areas in which questions arise is around Child Support; many people want to know what it can be used for, how much they have to pay, why they have to pay child support, and how it is calculated.

In recognition of this, we have attempted to create a list of the most frequently asked questions relating to child support, along with concise answers to help those who are looking for information.  If, after reviewing this list, you still have additional questions, please send us an email at assistant@familylawyerab.com and we will add your question to the list, along with our answer.

CHILD SUPPORT FAQ

  1. What is Child Support?

Simply put, Child Support is financial support to provide for your child’s food, clothing and shelter.  The presumption is that, while in a relationship, parents jointly financially provide for their children, and when couples separate or divorce, this should not detract from the parents’ obligations in continuing to provide for the care and needs of their children.  Child Support is intended to ensure that, even if the parents are no longer in a relationship, they will still provide financial support for the children, and the children will continue to have a similar standard of living.

Essentially, it is support for the children, not the adults.

  1. Why am I paying it to the other parent then?

The parent who pays child support pays financial support to the other parent for the children that are in  the other parent’s care. As the caregiver of the child, the parent who receives the money, does so on behalf of the child. Still, accepting financial support does not change the nature of the funding; it remains the money to be used to support the child and not the parent.

  1. Why do we use the Guidelines and Tables to determine child support?

The governing legislation for child support, the Federal Child Support Guidelines (“FCSG” – for married couples) and the Alberta Child Support Guidelines (“ACSG” – for common-law couples), sets what child support is payable as set out in the applicable tables, according to the number of children who can claim support. This means every child in the same province, with parents who have a similar income, should receive the same child support.

  1. What is child support meant to cover?

There are two categories of expenses the child support is meant to cover:

  • s3 FCSG : Covers basic expenses related to food, clothing, and shelter for the child
  • s7 FCSG: Otherwise known as ‘section 7 expenses’, the second category of support covers special and extraordinary expenses such as:
    • Child care expenses
    • Medical and dental insurance premiums attributable to the child;
    • Health-related expenses that exceed insurance reimbursement by at least $100 annually (i.e. professional counseling, speech therapy, etc);
    • Extraordinary expenses for primary or secondary school education or educational programs that meet the child’s particular needs;
    • Expense for post-secondary education; and
    • Expenses for extracurricular activities.

 

  1. How do I know the child support is being spent properly?

You don’t. If your child is appropriately fed, clothed and has a comfortable home, then the child support is being spent properly.

  1. How is child support calculated? What does the ‘table amount of support’ mean?

The amount of child support calculated depends on which category of child support you are referring to:

  • s3 FCSG: Basic child support is determined by referring to the amount set out in the applicable table according to the number of children under the age of majority to whom child support relates and the income of the parent against whom child support is sought.
  • s7 FCSG: Special and Extraordinary expenses are determined by sharing the expenses between the parents in proportion to their respective incomes after deducting any contribution of the expenses from the child.

 

  1. How is ‘income’ calculated for figuring out child support amounts?

In a nutshell, ‘income’ means the annual income of a parent. It is not just a parties’ Line 150 income. For example, items that can be deducted for the Canada Revenue Agency purposes may not be deducted when determining your income. Income can be determined by the court using the following methods:

  • Agreement between the parents in writing as to their annual income, if considered reasonable;
  • Referring to sources of income set out under heading ‘Total Income’ in the T1 General form issued by the Canada Revenue Agency, which is then adjusted by Schedule 3 of the Alberta Child Support Guidelines;
  • Referencing the parent’s income over the last 3 years and determining a ‘fair and reasonable’ amount in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years;
  • In cases where the parent is a shareholder, director or officer of a corporation, the court may consider all the money available to the parent for payment of child support, including pre-tax income of the corporation or amounts commensurate with services the parents are providing to the corporation not exceeding pre-tax income; and
  • Imputing an amount of income to the parent that is considered appropriate in the circumstances, including where the parent is intentionally under-employed or unemployed.

 

  1. Does the court look at my net income, or my gross income?

Child support is determined by considering a parent’s gross income.

  1. Can I deduct any expenses from my gross income when determining child support? What are Schedule III adjustments?

No, the Court will not accept all expense deductions.

Where a parent earns self-employment income and deducts amounts for salaries, benefits, wages or management fees, the court will only accept those deductions and not add them back for the determination of child support where the parent establishes that the payments are:

  • Necessary to earn the self-employment income; and
  • Reasonable in the circumstances.

Schedule III adjustments affect the determination of a parent’s annual income when using the sources of income set out under the heading ‘Total Income’ in a parent’s T1 General form issued by the Canada Revenue Agency. The stipulated expenses in Schedule III are the deductions that are accepted when determining income and include:

  • Employment expenses – concerning dues and motor vehicle travel expenses;
  • Child Support – support received that is included to determine total income;
  • Spousal Support – spousal support received from the other spouse and any universal child care benefit included to determine the spouse’s total income;
  • Social Assistance – any amount that is not attributable to the spouse; and
  • Business Investment Losses– deduct the actual amount of business investment losses suffered by the spouse during the year.

 

  1. Does the court use current income to set child support amounts?

Yes, the current income is used, although often support will be based on last years income simply because that is often the only information available.

  1. What is ‘imputed income’?

‘Imputed income’ is the amount of income that the Court will attribute to a parent that they consider appropriate in the circumstances.

In some cases, that will mean the Court will set what the appropriate income would be where the spouse with the obligation to pay support fails, through intentional actions, to maximize income from employment. In other cases, the court will deem that a spouse makes a specific higher amount, where that spouse has pursued a deliberate court of conduct to undermine or avoid their child support obligations.

  1. Are there situations where the table amounts may not apply?
  2. Imputed Income: The court may decide not to apply the table amounts and choose rather to impute an amount of income to a parent that it considers appropriate where:
  • The parent is intentionally under-employed or unemployed;
  • The parent is exempt from paying federal or provincial income tax;
  • Parent lives in a country where the income tax is significantly lower than those in Canada;
  • It appears the income has been diverted which would affect the level of child support to be determined;
  • The parent’s property is not reasonably utilized to generate income;
  • The parent has failed to provide income information when under a legal obligation to do so;
  • The parent unreasonably deducts expenses from income;
  • The parent derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that is exempt from tax; or
  • The parent is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
  1. Shared Parenting: The court may also decide to depart from the table amounts when dealing with a shared parenting arrangement. This arrangement involves one spouse exercising parenting time with the child for not less than 40% of the time over the course of the year.

In these circumstances, the amount of child support would be determined by taking into account the amounts set out in the applicable tables, the increased costs of shared arrangements and the conditions, means, needs and other circumstances of each spouse and any child for which support is sought. All three of these factors should be considered and none would independently prevail.

  1. Split Parenting: In split parenting arrangements, which describes arrangements where each spouse has custody of at least one child. In these situations, the amount of child support would be the difference between the amount each spouse would otherwise pay if the child support order was sought against each of the spouses.
  2. Over Age of Majority: The court may also depart from the table amount where the child is over the age of majority. In these cases, the court would order what it determines to be an appropriate amount of child support after having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
  3. Undue Hardship: On either of the spouse’s application, a court may award an amount of child support that is different, if it is found that the spouse making the request or the child of whom the request is made, will suffer undue hardship.

Circumstances that may cause a spouse or child to suffer undue hardship include:

  • The spouse having unusually high expenses in relation to exercising access to the child; and
  • The spouse having a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

 

  1. Do I have to apply to the court to get child support?

No, upon separation you and your ex-partner or spouse may agree to pay child support without the involvement of the courts. However, these arrangements are not legally binding so it may become necessary to come to court to obtain a legally enforceable document for the payment of child support.  The Maintenance Enforcement Program can only enforce a child support order not agreement.

 

  1. Can the other parent and I decide on our own how much child support will be paid?

Yes, parents may decide on how much child support to pay, as long as the amounts set in the child support guidelines are the base amount payable. Therefore, it is always open to parents to pay more than the amounts stipulated in the governing legislation.

  1. Does my new partner’s income affect support payments?

No, not usually. Considering child support is the obligation of the parents, a parent’s subsequent marriage or relationship does not generally affect existing child support obligations.

Your new partner’s income may become relevant if you make an application for undue hardship, and the Court undertakes a ‘Standards of Living Test’ as set out in Schedule II. Despite fulfilling the requirements for a determination of undue hardship, a court will deny your application if your household, as the spouse claiming an undue hardship, would have a higher standard of living than the household of the other spouse after a determination of child support is made.

  1. Do I have to pay support for my step-children?

No-one would not be under an obligation to pay support for their step-children unless a child support order was sought against them and it was established that they stand in the place of a parent and that the amount to be paid is considered appropriate.

A step-parent would be considered to be standing in the place of a parent if the person:

  • Is the spouse of a parent of the child or is or was in a relationship of interdependence of some permanence with a parent of the child, and
  • Has demonstrated a ‘settled intention to treat the child as the person’s own child’ which can be determined by considering factors such as the child’s age, the duration of the child’s relationship with the person, whether the person has provided direct or indirect financial support for the child and whether the person has considered adopting the child or changing the child’s surname to that person’s surname.

 

  1. Do I have to claim child support on my taxes?

No, child support payments are not considered taxable income. Therefore, child support payments are neither deductible by the payor nor taxable to the payee.

  1. We have a shared custody arrangement. Does this affect our income tax?

Yes, a shared custody arrangement may affect income tax. For example, when claiming the amount for an eligible dependent, only the recipient parent can claim that tax benefit and not the payor parent.

In situations where there is a shared custody arrangement or court order clearly establishing that you and another person are required to make child support payments, neither of you would be able to claim the amount for an eligible dependant for that child. However, in this case, it may be possible for you to claim the amount for an eligible dependent as long as you and the other party agree that you can make that claim. If no agreement is reached, then neither of you can claim an amount for an eligible dependent for the child.

Even if an agreement is reached, the claiming parent would only be able to claim for the time the child is in their care.

  1. What if the payor doesn’t give me their financial information every year as required in our order?

Where a parent has failed to provide income information when under a legal obligation to do so, the Court may impute the amount of income to the parent that it considers appropriate in the circumstances.

The Court may also, on application, consider the non-obliging spouse to be in contempt of court and award costs in favor of the applicant or make an order requiring the other spouse to provide the required documents to the court or the other spouse.

  1. Do I have to pay child support if my child is no longer living with either parent?

It depends. If the child is under the age of majority but has withdrawn from the care and control of their parents and are living an independent lifestyle, then child support payments would no longer need to be made. The obligation to pay would be revived if the minor abandons their independent lifestyle and returns to the care of their parents.

If the child is over the age of majority, and not living with either parent but has not withdrawn from their parent’s care because they are a full-time student, child support would still have to be paid.

If the child is no longer living with either parent because they are a spouse or interdependent partner, no child support would need to be paid.

It should be noted, that parents may still be obligated to pay child support if an application for support is made by a person who has care and control of the child (ie. an aunt) or by someone with the permission of the court where it is considered the application would be in the best interests of the child.

  1. What is retroactive support?

Retroactive support refers to child support amounts that make up for not paying the proper amount of child support in the past; in other words, back-dated child support.

Once a court determines that retroactive child support should be ordered, as a general rule, the award should be retroactive to the date of effective notice but no more than three years into the past. Effective notice does not require the recipient parents taking legal action, all that is required is that the topic of child support not being paid or not being enough but canvassed. This three-year limit encourages recipient parents to be proactive.

  1. What do I do if the other parent isn’t paying their child support?

You first put the other parent on notice that they have an obligation to pay child support, by asking for child support in writing.

If they still do not pay, you may seek an Order for child support from the court. Once you receive an Order for child support, you can have the Order registered with Maintenance Enforcement Program which has tools for compelling the payment of child support, such as suspending the other parent’s license until payment is made.

  1. When do I stop paying child support?

For divorced parents, the child support payments end when a child is either:

  • Under the age of majority but are no longer under the care and control of their parents; or
  • Over the age of majority is in no longer under the care and control of their parents and can obtain the necessaries of life.

The age of majority in Alberta is 18 years old.

For parents separated from common law relationships, child support ends either when:

  • A child reaches the age of majority and can withdraw from their parent’s care because they are not full-time students; or
  • The child turns 22.

 

  1. I already have a child support order. How do I change it?

Child support orders may be changed or varied prospectively or retrospectively, on application when there is:

– a change of circumstances that occurs after the making of the last child support order; or

– evidence of a substantial nature that was unavailable in the previous hearing that has become available.

Circumstances that can give rise to the making of a variation order include:

  • Any change that would result in a different child support order being made; or
  • Any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support.

 

  1. What are ‘lying-in expenses’?

Lying-in expenses are expenses that are meant to contribute to the reasonable costs of being pregnant and carrying a baby to term and preparing for the birth of the baby. Costs cover for expenses related to maternity vitamins, maternity clothes and baby-related equipment such as cribs. These expenses may be sought as part of a child-support application to the court.

An Application for lying-in expenses can be made either during the pregnancy or after the birth of the child. It is common for the application to be made after the child is born as it makes things easier by combining the application with one for child support.

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