If you or your former spouse are high income earners and share children, the following scenarios may be familiar when calculating child support:
In Alberta, the law on what constitutes a "child of the marriage" continues to evolve. There is a common misconception that when a child reaches the age of majority (18 in Alberta), he or she is no longer entitled to support. This is incorrect. Pursuant to the Divorce Act (Canada), if a child is over the age 18 but is unable to obtain the necessities of life, he or she may be entitled to child support.
When a written agreement or court order states that a parent is obligated to pay child support and spousal support, the law specifies that priority be given to the support for the child. In terms of taxes, that means the child support payments must be paid in full before the payer can claim a deduction for any amount paid.
Before a judge decides on the amount and duration of spousal support, entitlement to support must first be established. A disparity between the parties' incomes is a factor to be considered but does not automatically mean that the spouse with the lower income is entitled to support. In one of our previous posts, we discussed how entitlement to spousal support is determined.
Federal and provincial laws establish criteria for when an adult child is eligible for child support. Specifically, the Divorce Act states that if a child who is 18 or older is unable to obtain the necessaries of life, then he or she may be entitled to child support. The Family Law Act also establishes child support criteria for adult children.
By law, children are entitled to support from both of their parents, and child support laws in Canada are guided by this principle. When parents separate or divorce, they can come to an agreement on child support without litigating the matter in court. Sometimes, though, it is necessary to ask a judge to make a child support order if the parents are unable to agree outside of court.
When a married or common-law couple separates, determining the amount of child support and spousal support tends to be a complicated matter, especially if complex assets have to be considered. If you and your spouse are separating in Alberta, then you should know that you are entitled to full disclosure of your spouse's finances, just as your spouse is entitled to full financial disclosure from you.
Spousal Support Guidelines and Child Support Guidelines help Alberta residents calculate the amount of each of those kinds of payments. While basic child support is established by law, spousal support is not, though judges often use the Spousal Support Guidelines as recommendations when deciding how much the payor will pay and for how long.
A variety of financial concerns have to be taken into account when a marriage breaks down, and it may be necessary to call upon accountants, financial advisors and business valuators to provide an accurate picture of each spouse's financial situation and how the matrimonial assets should be divided.
Changing a child support order in Alberta can be a complex process that requires knowledge of the correct forms and statutes to use, as well as careful preparation. Whether you are the payor or recipient of child support, it is a good idea to have a lawyer advise you of your legal rights and obligations. Also, the courts require that parties engage in a Dispute Resolution Hearing (mediation) before bringing an Application or Claim for child support, including any variation in child support. A lawyer can help in every step of the process, from preparing the Application/Claim and Affidavit, as well as representing you in court or a hearing/mediation before a Dispute Resolution Officer.