At Mincher Koeman, we believe in keeping clients informed as much as possible. To that end, we have compiled a list of questions that come up often, in an effort to provide basic information on our client’s most pressing concerns.
A couple is generally considered “separated” when at least one spouse states that they wish to end the relationship, and the spouses begin living “separate and apart” with no reasonable chance of reconciling. In some circumstances, spouses may be considered to live separate and apart while still living in the same home.
Under the Divorce Act, a divorce can only be granted if there has been a “breakdown of the marriage”. Most often, this breakdown is established once the couple has lived separate and apart for at least one year. Less commonly, a divorce may be granted in less than a year on the basis of adultery or cruelty.
A separation agreement is a contract between a separated couple that sets out their agreement on various matters arising from their marriage or cohabitation, including parenting arrangements, child or spousal support, living arrangements, property division, and rights to one another’s estate. Separation agreements can be created through negotiation or mediation and may incorporate terms from the couple’s marriage or cohabitation agreement (if they have one).
Most divorces do not require a trial and are resolved by negotiation between the parties or another form of alternative dispute resolution, such as family mediation or arbitration. A court hearing, such an application/motion or trial, may be required when a couple is unable to resolve an outstanding issue through less formal means.
Common-law relationships are formally known as “adult interdependent partnerships” in Alberta, as per the Adult Interdependent Relationships Act. In order to establish a common-law relationship in Alberta, the couple must meet one of three criteria:
Yes. Under Alberta’s Adult Interdependent Relationships Act, two platonic friends can be considered common-law spouses if they are in a relationship of interdependence or enter into an Adult Interdependent Partnership agreement.
The Adult Interdependent Relationships Act defines a relationship of interdependence as a relationship (other than marriage) in which two people share their lives with each other, are emotionally committed to one another, and function as an economic and domestic unit.
Parenting time is the amount of time a child spends in each parent’s care after they separate or get divorced. It was previously referred to as “access”.
Decision-making responsibility was previously known as “custody” and refers to a parent’s legal authority to make decisions about their child’s upbringing and care. This can include a parent’s ability to decide matters relating to education, healthcare, religion, spiritual or traditional practices, and discipline.
Grandparents do not have an automatic legal right to see or contact their grandchildren. However, the court may grant an order giving a grandparent access to, or contact with, their grandchild if the grandparent can show it is in the child’s best interests to do so.
A parent usually cannot make the unilateral decision to move away with their child if it will cause a material change to a parenting arrangement or impact the other parent’s parenting time. The parent who wishes to move must apply to the court for permission to do so. The court will consider all of the circumstances to determine whether the move would be in the child’s best interests.
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.
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 is to be used to support the child and not the parent.
The governing legislation for child support, the Federal Child Support Guidelines (“FCSG” ), used for married couples and the Alberta Child Support Guidelines (“ACSG” ), used 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 and the income level of the parents. This means every child in the same province, with parents who have a similar income, should receive the same child support.
There are two categories of expenses child support is meant to cover:
You don’t. If your child is appropriately fed, clothed and has a comfortable home, then you can assume the child support is being spent properly.
The method for calculating child support depends on which category of support you are referring to:
In a nutshell, “income” means the annual income of a parent. It is not just a party’s Line 150 income. For example, items that can be deducted for federal tax purposes may not be deducted when determining your income. Income can be determined by the court using the following methods:
Child support is determined by considering a parent’s gross income.
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:
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:
Yes, the current income is used, although often support will be based on the previous year’s income simply because that is often the only information available.
“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 means 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 attempted to hide income in order to undermine or avoid their child support obligations.
Imputed Income: The court may decide not to apply the table amounts and choose instead to impute an amount of income to a parent that it considers appropriate where:
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 equally.
Split Parenting: In split parenting arrangements, which describes an arrangement where each spouse has decision-making responsibility and the majority of parenting time for at least one child. In these situations, the amount of child support awarded would be the difference between the amount each spouse would otherwise pay if each parent sought an order for child support order from the other.
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.
Undue Hardship: On either of the spouse’s application, a court may award an amount of child support that is different from the table amount if it is found that the spouse making the request or the child for whom the request is made, will suffer undue hardship.
Circumstances that may cause a spouse or child to suffer undue hardship include:
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 a private agreement between the parties.
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.
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 undue hardship, would have a higher standard of living than the household of the other spouse after a determination of child support is made.
No one would 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 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:
No, child support payments are not considered taxable income. Therefore, child support payments are neither deductible by the payor nor taxable for the payee.
Yes, having an arrangement where you share decision-making responsibility and parenting time (often called a “shared custody” arrangement under the old Divorce Act terminology) 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.
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 favour of the applicant or make an order requiring the other spouse to provide the required documents to the court or the other spouse.
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 (i.e. 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.
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 to take legal action. All that is required is that the topic of child support not being paid or not being enough is canvassed. This three-year limit encourages recipient parents to be proactive.
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 it registered with the 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.
For divorced parents, child support payments end when a child is either:
The age of majority in Alberta is 18 years old.
For parents separated from common-law relationships, child support ends when either:
Child support orders may be changed or varied prospectively or retrospectively, by application to a court when there is:
Circumstances that can give rise to the making of a variation order include:
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 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.
While a spouse may apply to the court for an order granting them spousal support after their separation, spousal support is not an automatic right. A court may grant spousal support where one spouse has been disproportionately affected financially by the separation or divorce, a spouse is in financial need and the other has the ability to pay, or the spouses have already made an agreement that provides for the payment of spousal support in the event of a separation.
Common-law partners can apply for spousal support under Alberta’s Family Law Act if:
Meeting these requirements does not mean that spousal support will be automatic. The Court must still examine whether the circumstances listed above are present.
The amount and duration of spousal support depend on a variety of factors, including:
In many cases, judges will use the calculations set out in the federal Spousal Support Advisory Guidelines as a roadmap for determining the appropriate amount and duration of support. However, as these guidelines are not law, a judge has the discretion to deviate from them.
In most cases, family property is divided equally between a couple after the relationship ends. “Family property” (formerly, “matrimonial property”) includes all assets and debts acquired by a couple during their marriage or common-law (adult interdependent) relationship. A different division of some property may be used upon agreement of the couple or order of the court.
Both spouses or common-law partners have the right to remain in the family home after separation, even if only one spouse owns or leases the home. The couple may reach an agreement about who will remain in the home post-separation. They may also both stay in the home but live separate lives (“separate and apart”).
If one spouse or common-law partner wishes to live in the family home alone after separation, they may apply to the court for an order of exclusive possession. The court will consider all of the family’s circumstances before granting such an order, including each spouse’s financial means, any pre-existing court orders about financial support or property division, and the best interests of the couple’s children. Spouses can also negotiate an arrangement where one of them remains in the family home.
Yes. Most caseworkers will have at least one other person present when they meet with you. This may be a colleague or a team leader or even a Manager. Caseworkers are encouraged as part of their Signs of Safety Training to encourage parents to have support people present who can assist them in understanding what is being asked of them, what the concerns are and what steps they need to take during this challenging time.
The caseworker may request this. This does not mean you have to agree. In fact, you can ask for clarification from the caseworker about why they will not allow you to have a support person present.
Yes. If a caseworker has concerns about your child and needs to do an investigation, they can arrange to meet with your child without you present. However, when arranging these meetings, the caseworker should be cognizant of your child’s interests and should arrange if possible for an interview to take place where the child is not embarrassed in front of peers or upset unnecessarily.
When a caseworker meets with you, they will take notes. These notes are kept on file as they form the caseworker’s record of their perception of what was discussed. You are rarely given the notes to review or check them for accuracy at the time. You can take your own notes of the meeting and provide them to the caseworker and ask that they are placed in their file as well. However, if you send the caseworker an email or fax or leave a voicemail, this also forms part of their file. This communication may be used in court on a later date.
Yes. However, you should consider this step carefully as a caseworker may consider that your child is in danger and apply to apprehend your child as they cannot confirm the child’s safety.
No. Payment in exchange for reproductive materials is prohibited in Canada under the Assisted Human Reproduction Act. However, the donation of materials is legal. As a best practice, we recommend that all parties involved in the donation of reproductive materials enter into a comprehensive contract setting out each person’s duties and obligations before taking any concrete steps towards collecting or retrieving materials.
No. Under the Assisted Human Reproduction Act, paying a person for surrogacy services is prohibited. However, it is permissible to reimburse a surrogate for their reasonable expenses of the surrogacy. Before any steps are taken toward beginning a surrogacy, we advise each party to seek independent legal counsel and to enter into a comprehensive contract setting out each party’s rights and obligations under the agreement.
Donors and surrogates cannot earn a profit from donating reproductive material or carrying the pregnancy. Expenses that are reasonably connected to the donation or surrogacy may be reimbursed by the intended parents, however. The following are examples of reasonable expenses that may be reimbursed under Regulation SOR/2019-193:
In traditional surrogacy, the surrogate donates their eggs in addition to carrying the child. This solution is often used by parents who will require both donated eggs and a surrogate, in order to streamline the process.
In gestational surrogacy, the surrogate has no biological relation to the baby they will carry. The eggs will be retrieved from the intended parent, or an egg donor, and implanted into the surrogate. This is often the preferred choice when the intended parent has viable eggs but is unable to carry a pregnancy for one reason or another.
Each case is unique and can involve multiple people. No matter how you plan to proceed with surrogacy, we strongly recommend that each party obtain independent legal advice before taking any concrete steps. This way, the parties can enter into a comprehensive contract customized for their situation, in an effort to prevent future disputes.
Alberta by default recognizes the person who birthed the child as a legal parent, but in the case of a surrogacy, the intended parents may file an application for a declaration of parentage. The following people can bring such an application:
In cases where neither intended parent provided reproductive material for the pregnancy, the intended parents will be required to apply to adopt the child, rather than request a declaration of parentage.
Many families in Alberta are non-traditional, meaning there may be more people who consider themselves a parent to a child than the standard two. However, Alberta law still only permits a maximum of two people to be named as legal parents on a child’s birth certificate. However, courts in other provinces have begun to recognize a need for the law to evolve along with society’s definition of family, by ordering that more than two people be listed as legal parents on a birth certificate.
Traditionally, the law allows for the parent who gave birth to the child, as well as one co-parent (most often the biological father) to be listed. However, more families are taking to the courts to have their parental status recognized, including LGBTQIA2S+ families and those in polyamorous relationships.
707 7 Ave SW #1300,
Calgary, AB T2P 3H6
102 512 Bow Valley Trail,
Canmore, AB T1W 1N9
© Mincher Koeman LLP 2023. All rights reserved.
Website designed and managed by Umbrella Legal Marketing