Child Support
SOLUTIONS

What is child support?

Child support is money paid by one parent to another to assist with financially supporting their children. Child support includes a basic fixed amount to assist with paying for food, shelter and clothing for the children as well as periodic amounts for extraordinary expenses.

How is child support calculated?

Where the children live primarily with one parent – defined as over 60% of the time, section 3, base or the table amount of child support (all the same thing) is based on the guideline income of the parent paying support, the province the payor parent resides in and the number of children of the relationship. Once these are determined it is just a matter of referencing the Federal or Alberta Child Support Guidelines to determine the appropriate amount of child support payable.

Where parenting is shared – defined as each parent having parenting time with the children at least 40% of the time, we look to section 9 of the Federal or Alberta Child Support Guidelines to determine the appropriate amount of child support payable.  Shared parenting requires an analysis of the following three factors in order to determine the appropriate amount of child support payable:

1. The difference between the amount of section 3 base child support each parent would pay the other if the other had primary care of the children;
2. Any additional costs associated with a shared parenting arrangement; and
3. The condition, means needs and other circumstances of each party and of the children.

Some examples of additional costs associated with a shared parenting arrangement include:

1. If one parent is paying for all of the clothing and outerwear for the children;
2. If one parent is doing all or the majority of the driving to facilitate parenting time between households; or
3. If one parent is always finding herself or himself being the “on call” parent – the one responsible for taking time off work to facilitate child appointments or to stay home with a child if the child is sick.

The condition, means, needs and other circumstances of the parties could include a consideration of household incomes, including a new partner’s income.  The condition, means, needs and other circumstances of the children could include a physically or mentally challenged child who requires special assistance.

How long does child support get paid?

Child support is payable until a child is no longer a “child”. Child support does not necessarily end when a child turns the age of majority.  It can continue beyond the child turning 18 in certain circumstances.

What is a child?

This may seem obvious, and it usually is, but not always, particularly when a child becomes an adult. 

In a marriage, for the purpose of child support a child is a child who is under the age of 18, who has not withdrawn from the care of her or his parents, or who is over the age of 18 but cannot withdraw from the care of her or his parents due to illness, disability, or other reason.

A child is defined differently when it is born to non-married people. In Alberta, under the Family Law Act a child means a person who is under the age of 18 years old or who is older than 18 years old but cannot withdraw from the care of his or her parents because of illness, disability, being a full-time student, or other cause. 

Child is defined similarly for married and unmarried couples, but the addition of “being a full-time student” provides a broader definition for children born to unmarried couples. That being said, children of divorce are usually still considered children after they turn 18 if they are still going to school full-time and are living with their parents.

Who has to pay child support?

If you are married, either spouse can apply for child support and the court can order child support pursuant to the Divorce Act. A spouse is either of the people who are married to one another.

In Alberta, under the Family Law Act, the Court may make an order for any parent to pay child support for their child. A parent is the biological mother or the biological father of the child, unless the child is adopted or was born by assisted reproduction.

A biological father is presumed to be the parent of the child if any of the following have happened:

1. He was married to the birth mother at the time of the child’s birth.
2. He was married to the birth mother 300 days before the birth of the child and the marriage ended by death, divorce, or was annulled.
3. He married the birth mother after the child was born and acknowledged that he is the father of the child.
4. He lived together with the birth mother for at least 12 consecutive months when the child was born and has acknowledged that he is the father.
5. He lived with the birth mother for at least 12 consecutive months and stopped living with the birth mother less than 300 days before the child was born.
6. He registered as the parent at the request of the mother under the Vital Statistics Act or similar legislation.
7. He is found to be a parent by the Court.

A person standing in place of a parent may also have to pay child support. Standing in place of a parent is also known as loco parentis. A person is in loco parentis where that person is or was in a relationship with a parent of the child, that relationship was somewhat permanent, and he or she intended to treat the child as their own.

Child support may have to be paid by more than one parent – for example if your child is living with his or her grandparents or child and family services have placed the child with another family, you and the other parent may both have to pay child support.

What is in loco parentis?

Loco parentis is a Latin term referring to a situation where a person stands in the place of a parent of a child. A person is in loco parentis when that person is or was in a relationship with a parent of the child, that relationship was somewhat permanent, and he or she intended to treat the child as their own.

Whether a person intended to treat a child as their own depends on the facts of each particular case. The court in Alberta will look at the any of the following factors in determining whether a person is in loco parentis:

1. The age of the child
2. The length of the relationship between the child and the person
3. The nature of the relationship with the child, including:
   
   
   • how the child views the person
   • whether the person was involved in caring for, disciplining, educating, and the child’s extracurriculars
   • any ongoing contact or attempts at contact between the person and the child, particularly post-separation
4. Whether the person has considered applying for guardianship, adopting the child, or changing the child’s last name to their own last name
5. If the person has provided financial support either directly or indirectly
6. The nature of the child’s relationship with any other parent
7. Any other factor that the court considers relevant

The test for standing in the place of parent or in loco parentis is fairly broad as the Court can look at any other factor that it considers relevant though, usually it is not necessary to go much further than the specifically enumerated factors. 

If you are standing in place of a parent, you may have to pay child support under the Family Law Act. You may also have rights to contact the child or to have parenting time.

How is parenting time determined for child support purposes?

If a child primarily resides with you, then that means that you have the child more than 60% of the time. If a child resides with you between 40% and 60% of the time, then you have shared parenting. Less than 40% of the time and you are an access parent.

If necessary, the Court will literally count hours to determine this. “With you” means when you are responsible for the child – if the child goes to school during your parenting time, that counts as your time. If the child goes to their friend’s house during your parenting time, that counts as your time. You do not need to be with the child at all times during your parenting time for it to count as your parenting time.  To be clear, the court will consider which parent is in charge of the child at each particular moment.  This analysis includes which parent is the “on call” parent.  For example, if something happens at school, which parent drops everything to attend to the child’s needs or which parent is consistently the contact parent for third parties.

How do I get child support?

In order to receive child support you will need to get the agreement of the payor parent or, if you are unable to get agreement, a court order.

If you reach an agreement with the other parent, then you have some options. If you are married and divorcing or separated, then you will need to put the agreement into an order before you get divorced. If you are not married, then you do not necessarily need a court order – a married person needs to make reasonable arrangements for the support of the children prior to getting divorced. There is no such requirement for non-married people.  Nevertheless, it is recommended that you get a court order so that you have easier enforcement options in the event the payor parent does not pay.

Mediation is one option that you can consider.  Attendance at a child support resolution meeting is another option.  This meeting is mandatory before you can bring a court application if both of you are self-represented.  A child support resolution meeting is presided over by an experienced family law lawyer and takes the form of a mediation.  If you come to agreement the child support resolution officer will prepare a court order for each party to sign.  The order is then sent to the court for filing.

If you cannot reach an agreement you can file an application so that the matter can be heard in court. The court has introduced new processes since the covid-19 pandemic interrupted normal life.  One process that has been added is “Docket Court”.  Docket court is a process that must be completed before being able to set a hearing date.  At docket the court will consider what process it thinks is best to resolve matters in the most expeditious and cost-effective process possible.  One of the new processes the court is directing matters to is called an Early Intervention Case Conference (EICC).  In many cases, if the matters I relatively new, the court will direct you to an EICC before giving a hearing date.  An EICC is essentially a mediation that is presided over by a judge.  The judge will not make a decision or impose anything on the parties.  Rather, the judge is limited to acting as mediator only.  It is only where both parties agree that a court order will follow from attendance at an EICC.  If no agreement is reached at the EICC the EICC judge can set a court hearing date.

What's the difference between sections 3, 7, 8, and 9 child support?

You will commonly hear child support referred to by “section” – section 3, section 7, section 8, and section 9 are the most common.

Section 3 is basic child support. When a child lives more than 60% of the time with one parent, the other parent pays child support based upon his or her province of residence, income, the number of children, and appropriate amount as set out in the child support tables.  Section 3 base child support is generally payable to assist with the payment of food, shelter and clothing for the children.

Section 7 refers to extraordinary expenses.  This is an amount payable over and above an in addition to the section 3 base amount.  Section 7, or extraordinary expenses are expenses that not all parentings are put to and can include:

• child care to allow a parent to work or attend post-secondary education
• The family portion of medical and dental insurance premiums
• dental expenses, orthodontics, professional counselling, physiotherapy, speech therapy, prescription drugs, hearing aids, glasses, and contact lenses
• extraordinary expense for school
• post-secondary education
• extracurricular activities.  

Things like school fees are typically not considered a section 7 expense as they are not extraordinary (all parents are put to this cost). 

Section 7 expenses are shared based on the proportion of each party's income as compared to the total income of both parties.

Section 8 refers to split custody. Split custody is when there are multiple children, and each parent has primary care of a different child. Each parent would pay table child support to the other parent based on the number of children the other parent has in his or her care.

Section 9 refers to shared parenting. Shared parenting is defined as each parent having parenting time with the children over 40% of the time.  Shared parenting requires an analysis of the following three factors in order to determine the appropriate amount of child support payable:

1. difference between the amount of section 3 base child support each parent would pay the other if the other had primary care of the children;
2. Any additional costs associated with a shared parenting arrangement; and
3. The condition, means needs and other circumstances of each party and of the children.

Some examples of additional costs associated with a shared parenting arrangement include:

• If one parent is paying for all of the clothing and outerwear for the children;
• If one parent is doing all or the majority of the driving to facilitate parenting time between households; or
• If one parent is always finding herself or himself being the “on call” parent – the one responsible for taking time off work to facilitate child appointments or to stay home with a child if the child is sick.

The condition, means, needs and other circumstances of the parties could include a consideration of household incomes, including a new partner’s income.  The condition, means, needs and other circumstances of the children could include a physically or mentally challenged child who requires special assistance.

How do we figure out income?

The amount of child support that needs to be paid is determined by looking at the tables in either the Alberta Child Support Guidelines if you are not married, or the Federal Child Support Guidelines if you are married. To use the tables, we need to know your income. Income is determined by first looking at the total income on a person’s income tax return. This is then adjusted taking into account the factors described at Schedule III of the guidelines. 

Notwithstanding the above, if the court determines that it would not be fair to use the total income on a person’s income tax return to determine their income, the Court may determine an amount that is both fair and reasonable taking into account the last three years of that person’s income. This does not mean that the court has to take an average of the person’s income. More often than not the Court will take an average of a person’s income over three years when there are fluctuations in the person’s income, like situations where an individual is a seasonal worker or is in commission sales and their annual income is inconsistent and not accurately predicable each year.

If a person owns a corporation, the court may include all or part of the corporation’s pre-tax income or an amount equal to the services that a person provides to the corporation, in the income of the party.

There are also some instances where the Court will impute an income to a party. Impute means to assign an income to a party even though that person does not necessarily earn that income. The most common reason for imputing income is because a parent is intentionally unemployed or underemployed in order to avoid paying an appropriate amount of or any child support.

The parties may agree on their incomes if the amount is reasonable after reviewing each of their complete financial disclosure. The court does not have to accept an agreement between the parties though.

What are Schedule III adjustments?

The starting point for determining the income of each party is the total income on a party’s income tax return or notice of assessment. However, Schedule III of the Federal and Alberta Child Support Guidelines allows for additional adjustments to be made in determining income. These deductions can be complicated. It is recommended that you speak to one of our lawyers for advice about this.

How do I enforce a child support order?

If the other parent does not voluntarily pay child support, you are having difficulty collecting child support, or you just do not want to deal with the other parent directly, you can register your child support order or a valid child support agreement with the Maintenance Enforcement Program (“MEP”).

Either the payor of child support or the recipient of child support can register with MEP. Once a party registers with MEP the other party must enroll as well. Child support payments are then made through MEP – the payor pays MEP, then MEP forward the funds on to the recipient.

Maintenance enforcement can only enforce orders for section 7 expenses that are specified – the order or agreement must specify a fixed dollar amount for a section 7 expense or a percentage of the expense as well as the specific expense that is payable. For example, an Order may say that a parent shall pay $100 per month towards section 7 expenses or an order may say that a parent shall pay 75% of soccer registration fees.

If a parent is registered with MEP and does not pay child support, MEP will begin to take enforcement actions. These include, but are not limited to: 

• suspending driver’s licenses;
• restricting the ability to register your vehicle;
• placing holds on passports;
• garnishing wages and bank accounts;
• Intercepting government benefits and reimbursements such as tax refunds; or
•  even throwing the delinquent parent into jail.

Every child support order has a clause which allows either party to register with MEP. Neither party has to register with MEP though, even though the wording of the clause makes it seem like the parties shall register with MEP. Registering with MEP is optional until one party registers.

How can I impute income?

“Imputing” income is the process by which a court assigns an income to an individual the court deems is either intentionally unemployed or underemployed for the purpose of avoiding the payment of a reasonable amount of support.  If the court makes this determination then it will assign an income to a party at a level commensurate with the level of income that unemployed or underemployed individual could reasonably be expected to earn if operating at reasonably full capacity.  The level of income imputed will then be used to calculate support payable and the unemployed or underemployed person will be required to pay support in the amount calculated irrespective of the fact that he or she is not earning the income that has been imputed to him or her.

It should be noted that Alberta is the only province in Canada that has interpreted the legislation as requiring a significant level of intention before imputing income.  Interestingly, the Alberta Court of Appeal issued a decision in the spring of 2020 suggesting that the Court of Appeal is open to considering whether or not this requirement should continue or whether the Province should now join all other Canadian jurisdictions in relaxing the test for imputing income.  Stay tuned for further developments in this regard.

Do I have to pay the full amount?

Only in special circumstances will the full amount of child support not be payable, even if the parties agree to a level of child support less than the amount prescribed by the legislation (called “departing from the guidelines”).  The courts have a legislated responsibility to ensure the economic well-being of a child and, as a result, have the power to override any agreement between the parties where that agreement is not consistent with the payment of support equivalent to the legislated amount.  If you do wish to come to agreement and depart from the guidelines you must satisfy the court that your child will be taken care of economically in all aspects even if the payment of child support is something less than the legislated amount.  Only if you can successfully do so will the court accept this type of an arrangement.

Another circumstance where the full amount of child support may not be payable is where the payment of the full amount would cause the payor undue hardship.  The goal of the court is to make effort to ensure that the child can enjoy reasonably similar lifestyles in each household.  Where the recipient of child support is able to provide a very comfortable lifestyle for the child and does not require financial assistance from the other parent, and where the payment of the full amount of child support would cause some sort of hardship to the payor, the court will consider reducing the full amount of child support payable.

Where there are extraordinary expenses related to facilitating parenting time with your child, the court may consider reducing the amount of child support payable to account for these type of expenses.

If you are in a shared parenting arrangement – being defined as each parent having parenting time with the child at least 40% of the time, the full amount of child support will most likely not be payable.  In shared parenting regimes the court will look at the full amount payable by you if the other parent has your child over 60% of the time and set that amount off against the amount the other parent would pay you if you have your child over 60% of the time.  The court will then consider any additional costs associated with a shared parenting arrangement as well as the conditions, means, needs and other circumstances of you, the other parent and the children and will then determine an appropriate amount of child support payable based on those factors.

I own a business, how is my guideline income determined?

Where you own your own business, whether solely or with a partner, the income you are paid by the business will not be the sole determinant of your income for the purpose of calculating support. Firstly, you will have a positive obligation to provide all of the financial statements as well as other financial documents relating to your business, to your former spouse or partner.  You will then have a duty to justify all of the expenses claimed by the business as being necessary for its normal operation.  Where you have received a personal benefit from corporately paid expenses the portion related to personal use will be considered as part of your income for the purpose of calculating support.  For example, your business pays 100% of your cell phone bill but you use your cell phone for personally use 60% of the time, that 60% will need to be included in the determination of your income for the purpose of calculating support.

It is important to understand that the rules that CRA applies in the allowance of expense deducibility are not the same as the rules used by the court in determining an appropriate amount of income for the purpose of calculating support.  Very generally speaking, a court will consider your line 150 income claimed on your personal income tax return, add to that the corporate income earned net of expenses but before tax (in a proportion commensurate with the percentage of your share of the business i.e. where you own 50% of the business only 50% of this amount would be used), and add to this the dollar amount of personal benefits received from corporately paid expenses.  Subject to some exceptions, the sum total of these amounts would be your income for the purpose of calculating support.

Does my partner’s income need to be exchanged?

When considering child support, if you are the primary parent of your child (if you have your child over 60% of the time), there will be no need to provide income information from any new live-in partner you may have for the purpose of calculating child support.

Where you are in a shared parenting arrangement your new partner's income may be relevant to the court to be able to analyze your condition, means and needs.  Another situation where your new partner’s income will be relevant is if there is a claim being made for undue hardship.  This is where there is an analysis of household incomes to determine the difference in the economic standard of living between each parent’s home.

Where the issue if one of spousal support, any new live-in partner’s income will be relevant and subject to being exchanged.

What disclosure do we need to exchange?

As with in any legal action, all documents that are relevant and material to the action that are in your power, possession or control, must be produced and exchanged.  In a divorce or family law matter there is an initial standard exchange of disclosure between parties that includes, among other things:

1. Your last 3 years of tax returns and notices of assessment;
2. Your last 3 paystubs;
3. Last 3 years of financial statements from any business, including justification that corporately paid expenses are necessary for the normal operation of the business and an indication of the extent of any personal benefit gained from corporately paid expenses;
4. Your last 6 months of bank, investment, loan, line of credit and credit card statements;
5. A monthly budget of expenses; and
6. A sworn statement that includes:
   
   
   • an indication of your income for the prior year;
   • an estimate of your income for the current year;
   • a list of assets with an estimate of value; and 
   • a list of liabilities with an indication of the current balance owed. 

As noted, this is just the starting point in the disclosure exchange.  Thereafter, further disclosure can be exchanged on request.  That further requested information can come voluntarily or, if may come by way of a formal request, called an “undertaking”, through questioning.  Another way to obtain further financial information is by filing an “Affidavit of Records”.  An affidavit of records is a list of all relevant and material documents.  The other party is then entitled to receive a copy of all of the documents listed.

What are section 7 expenses?

Section 7 expenses are “extraordinary expenses”.  They are called “section 7 expenses” because it is section 7 of the Federal or Alberta Child Support Guidelines that details what they are.  Extraordinary expenses are expenses that are not required to be paid for every child.  They include, among other things:

1. Child care expenses;
2. The family portion of health benefit premiums;
3. Prescription drugs that exceed any health benefit coverage;
4. Extracurricular activities;
5. Dental fees; and
6. Eye wear. 

Expenses that are not considered extraordinary, or that relate to food, shelter and clothing for the child, are the responsibility of the primary parent (defined as having the child over 60% of the time). An example of an expense that is not extraordinary is school fees and supplies (this is so because it is not an expense unique to a child but rather an expense payable for all children). 

The court will consider what the child historically was involved in, with a view to allowing the child to continue with any such activity in order to minimize disruption to the child, or whether or not an expense is necessary (for example, required dental work would likely be considered a section 7 expense whereas cosmetic dental work may not necessarily be considered a section 7 expense).  The court will then consider whether it is economical for the expense to be incurred based on each party’s economic circumstance. 

Where parenting is shared parties often agree to share expenses that would otherwise not be considered a section 7 expense, such as outerwear or school fees and supplies, given that in this scenario each party is generally paying the other an amount for child support.

How are section 7 expenses calculated?

Many people assume that section 7 expenses are shared equally. That is not the case.  Section 7 expenses are shared based on the proportion of each party’s income as compared to the total income of both parties.  In other words, to calculate your own proportionate share, you would divide your income by the sum total of your income plus the other parent’s income.  For example, if you earn $30,000 per year and your former partner earns $70,000 per year, together you have $100,000.  You have $30,000 of that $100,000 which is 30% of the cumulative total.  As a result, you would be responsible for 30% of the section7 expenses and your former partner 70%.

What if I can’t afford to pay?

If you truly cannot afford to pay child support you may consider bringing a “undue hardship” claim.  This is an analyzed comparison of the level of income in each parent's household (including that of new partners or others living in your home).

If you are able to demonstrate that there is a significant inequity and disparity in the standard of living between homes you may be able to successful convince a court that a reduction to the table amount of child support is warranted.

What happens when my kids turn 18?

A common misconception is that once a child turns 18 child support is no longer payable.  This is not necessarily the case.  Child support is payable for a child so long as that child is considered a “child of the marriage”.  A child of the marriage is defined by the Divorce Act as a child that is under the age of majority or, a child over the age of majority that cannot independently obtain the necessities of life.  

If a child is disabled and over 18 child support may still be payable for him or her.  Courts have determined that children that attend post-secondary educational institutions are also considered a child of the marriage.  The level of child support in these circumstances is not necessarily the full table amount of child support.  If a court believes that payment of the full table amount would be inequitable, it can order that a different amount be paid.  For example, if your child is living away from both parents’ residences while attending school and you are funding some or all of those costs the court may determine that you do not need to pay the full amount of child support to the other parent, or that there is no need to pay any amount at all.  The specific circumstances of each case will determine what a court decides.

What about post-secondary/university?

Attendance at a post-secondary educational institution will be enough for a child to qualify as a child of the marriage for which child support is payable – though, depending on the circumstances, not necessarily the full table amount.

Costs associated with a child’s attendance at a post-secondary educational institution are considered a section 7 expense, however, court have regularly treated how these expenses should be allocated, differently.  In some cases courts will simply divide this proportionately. In other cases the courts have expected the child to contribute in some reasonable amount and to seek out scholarships, bursaries or student loans.  The share expected to he contributed by the child varies based on each particular circumstance.  If there are RESP’s, the court will generally expect these to be utilized first.

My spouse is using child support for things other than the kids, why is that allowed?

It is not an uncommon complaint to hear that a parent is not using child support appropriately for the benefit of the child.  The court starts with the presumption that a parent will make decisions in the best interests of their child and, as a result, will very rarely direct how child support is to be paid.

Do I need a child support order?

If you want to be able to ensure that you can enforce the payment of child support it will be important for you to obtain a child support order from the court.  Without an order or written agreement the payor of child support could choose not to pay, leaving you scrambling to obtain a court order in your time of need.  We highly recommend that you obtain an order, even if you and your former spouse or partner are in agreement and you may never need to enforce the order.  This allows you to register the order with the Maintenance Enforcement Program in the event support is not paid or becomes inconsistent or irregular.