The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic is about the Child Support Guidelines. In Alberta, there are two Child Support Guidelines. The Federal Child Support Guidelines are part of the Divorce Act, and apply to those parents who are divorcing or who are changing a child support Order that was part of a divorce action. The Alberta Child Support Guidelines are part of the Family Law Act and apply to all other parents. Both of these Guidelines are very similar, and the principles discussed in this topic apply to both guidelines.
The payor is the parent who is required to pay child support for the children in the other parent’s care. The recipient is the parent who will receive child support.
Under the guidelines there are tables for each province and territory that are used to calculate the base or “table” amount of child support that the payor is required to pay, based on the province or territory where the payor lives, the number of children in the recipient’s custody that the payor is obligated to support and the guideline income of the payor.
The basic amounts of support in the guideline tables are based on the payor’s guideline income – which is usually the gross annual income. The table amounts already take into account the usual deductions from income, such as taxes, and the usual costs of access to the children.
These table amounts have been determined after looking at what parents in different income brackets generally spend on their children. The support amounts are intended to cover not only the direct costs for the children, but also the indirect costs, such as housing and transportation. Paying child support takes priority over paying any other expenses.
When the children primarily live with one parent, the base amount to be paid by the other parent is the amount shown on the tables, based upon their income and the number of children
Shared custody is when the children are with each parent approximately the same amount of time. In that case, the method for calculating the child support is to look at the table amount for the total number of children for each parent – and then the higher income parent will pay the difference between the two table amounts.
Split custody is when one or more children live with each parent. In that case, the method for calculating child support is to look at the table amount for each parent, based on the number of children living with the other parent. Then, one parent pays to the other the difference between the two table amounts.
The guidelines do allow the Court to deviate from the methods for calculating discussed here when there is shared or split custody, when the paying parent earns more than $150,000 per year and when one parent is suffering an undue hardship.
In addition to the table amount, the Court may also make an Order for payment of special expenses. These are sometimes called section 7 expenses. Special expenses are:
- Child care expenses;
- Medical and dental insurance for the child;
- Medical and dental expenses not covered by insurance;
- Extraordinary school expenses;
- Extraordinary extracurricular expenses; and
- Post-secondary education expenses.
Some of these expenses may be subsidized or there may be a tax deduction. The amount that is claimed as part of child support is net of any subsidy or tax deduction. The special expenses are divided between the two parents proportionately to their incomes. For example, if Parent A makes $50,000 and Parent B makes $100,000, then Parent A will pay one-third and Parent B will pay two thirds of any special expenses.
Because child support is based upon income, it can be changed as the parent’s incomes change or as the special expenses change. For that reason, it is important to exchange income information when child support is first raised and every year thereafter.
The income information that should be exchanged includes your complete tax return, your Notice of Assessment, and, if you are self employed, other documents showing the income earned by your business. If you are the parent receiving the child support, you need only exchange income information if there are special expenses being paid, or if you want to ask for special expenses.
The income that is used to determine child support is called your guideline income. In many cases, that is the person’s gross annual income, either from line 150 of their last years’ tax return, or based on their current year-to-date income. However, there are some cases when a different amount may be used. These include:
- If union dues are paid;
- If the income varies widely from year to year;
- If there is a one-time source of income;
- If the person are self employed;
- If the person has stock options, dividends or capital gains;
- If the person has tax free income; or
- If the person is intentionally unemployed or under-employed.
Sometimes one parent may argue that they cannot afford to pay the amount of support calculated by the guidelines, or, if they are the recipient, that they need more than the guidelines. In that case, the parent may make an undue hardship argument to the Court at the time that the child support is being determined.
To argue undue hardship, you first must show that you have grounds for undue hardship. Grounds include:
- Having to pay support for another child;
- Having unusually high access costs; or
- Having unusually high debts incurred while you were together or incurred to earn a living.
The second part of the undue hardship argument is to show that you have a lower household standard of living than the other parent. There is a mathematical formula that can be used to compare standards of living, or the Court may decide to do the comparison using some other method. If you are successful in arguing undue hardship, then the Judge will decide the appropriate amount of child support.
The Department of Justice Canada’s publications on child support are available on the Internet. The address is http://canada.justice.gc.ca
For advice on exactly how the guidelines apply to your personal situation, you may wish to speak to a lawyer.