child and spousal support
DESCRIPTION
Child and Spousal Support. In partnership with the Edmonton Public Library . Agenda. Introductions How this evening’s presentation will proceed Housekeeping – washroom locations You have three things in front of you: A copy of this PowerPoint A resource sheet - PowerPoint PPT PresentationTRANSCRIPT
Child and Spousal SupportIn partnership with the
Edmonton Public Library
Agenda1. Introductions2. How this evening’s presentation will
proceed3. Housekeeping – washroom locations4. You have three things in front of you:
1. A copy of this PowerPoint2. A resource sheet 3. A feedback form that we ask that you fill
out before you leave tonight to help us improve these sessions.
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DisclaimerThe information presented during
this session may have limited application to your particular
situation. The lawyers who are here this evening CAN provide legal
information that may give you a greater understanding of how the
law might apply to your own situation. The lawyers who are here this evening CAN NOT provide you
with individual legal advice.
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Contents1. Spousal Support
A. IntroductionB. Who can applyC. The Law of Spousal SupportD. Advisory GuidelinesE. Miscellaneous Issues
2. Child SupportA. Federal Child Support GuidelinesB. Basic Questions
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ContentsB. Basic Questions
i. Which children are entitled to support?ii. Parenting arrangementsiii. “Guideline incomes”iv. Adjustments v. Special expenses
C. Other Issuesi. Maintenance Enforcement Programii. Child Support Recalculation Programiii. Retroactive Child Supportiv. Applications
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1. Spousal and Adult Interdependent Partner Support
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A. Introduction Spousal support is determined using a
very different set of considerations than child support.
Spousal support is highly discretionary and is sometimes more challenging to predict and/or negotiate.
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B. Who is Able to Apply for Spousal Support? Married spouses can apply for spousal
support under the Divorce Act or the Family Law Act.
Unmarried individuals can only apply under the Family Law Act.
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B. Who is Able to Apply for Spousal Support? An unmarried person must qualify as an
“adult interdependent partner”. Designation based on the following factors :
is the relationship conjugal? is it exclusive? what are the household and living
arrangements?
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B. Who is Able to Apply for Spousal Support?Interdependence factors (cont.):
do people hold themselves out as a couple? have they, in some way, formalized their
relationship with each other? is there financial interdependence? care and support of children? ownership, use and acquisitioned property
together?
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C. The Law of Spousal Support
In cases involving children, child support always takes priority.
We look at both factors (what does the court consider?) and objectives (what are we trying to achieve)
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C. The Law of Spousal Support Factors include:
how long have the parties inhabited a residence together?
what functions did they carry out when they lived together?
is there any order or agreement in place between them?
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C. The Law of Spousal Support
Factors (cont.): what are their means (income and
other financial resources)? what are their needs (what do they
need to live on)? what are their conditions (i.e. presence
of children, health, special needs etc.)?
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C. The Law of Spousal Support
Objectives are: to address and economic advantage
or disadvantage either party experienced as a result of the marriage or the separation;
to relieve economic hardship;
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C. The Law of Spousal Support
Objectives are: to deal with financial consequences of
looking after children, over and above child support;
to promote economic self-sufficiency of each person within a reasonable period of time.
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C. The Law of Spousal Support
Four basic steps:1. Entitlement: Should a spouse
receive support?2. Form: How should it be paid?
Periodic or lump-sum?
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C. The Law of Spousal Support Four basic steps:
3. How much? - What amount seems appropriate?
4. How long? – How long should payments be continued?
a) Indefinitely b) Time limited c) Subject to review d) Other options
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D. What are the Spousal Support Advisory Guidelines? Only advisory.
They offer some guidance about what a range of amount and duration might look like.
With or without child support.
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E. Miscellaneous Issues The court is able to make “interim” as
well as “final” awards.
Spousal support orders are enforceable through the Maintenance Enforcement Program.
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E. Miscellaneous Issues In certain cases the Courts will consider
awards of retroactive spousal support
The law is varying a spousal support order is complex and not straight forward; this is where legal advice is usually needed.
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2. Child Support
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Child SupportA child support application can be
made by:the child;a parent of guardian;someone who has control or care
of the child; and a few others.
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Child SupportAlmost always identical regardless of
whether parents are married, unmarried, or have never lived together.
There are two acts that govern Child Support, the Divorce Act and the Family Law Act.
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A. Federal Child Support Guidelines The rules for calculating the amount one
parent must pay to the other parent to help support their child or children.
Based on studies of average costs of raising children; each province has their own tables because of different tax rates and costs of living.
These guidelines are mandatory with certain areas of departure and deviation.
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Structure of the Guidelines FCSG set out some tables to show
how much child support parents should pay.
Amounts are: based on number of children; driven solely by income of payor (the
party paying the support); not taxable or deductible; “global” amounts.
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Section 7, Special Expenses Based on the idea that not every
household is the same.
S. 7 is an attempt to customize child support based on the presence of additional expenses.
Normally, parents are expected to share these expenses equally.
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B. Basic QuestionsIn any child support case there are some basic questions that need to be answered:
i. Which children are entitled to child support?ii. What is the parenting arrangement?iii. What are the “guideline incomes” of the
involved parents?iv. Are there any adjustments needed to move off
the amounts listed in the FCSG tables?v. Are there additional “special expenses” to be
considered?
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i. Which Children are Entitled to Child Support? Children under the age of 18 who have
not withdrawn from the charge of their parents.
Children over the age of 18 may be entitled if they meet certain conditions, outlined on the next slide.
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i. Which Children are Entitled to Child Support?
Under the Family Law Act: if they are between the ages of 18
and 22; and if they are in a full-time course of
education.
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i. Which Children are Entitled to Child Support?
Under the Divorce Act: if disability or illness that prevents
them from living without the aid of their parents; or
they are enrolled in post-secondary education
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i. Which Children are Entitled to Child Support?
Under the Divorce Act: Parents can be obliged to pay child
support if they have “stood in the place of a parent”.
Step-parent obligations are subject to discretion.
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ii. What is the Parenting Arrangement? The FCSG are based on a traditional
parenting arrangement where one parent has primary care of the child and the other sees them weekends or mid-week.
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ii. What is the Parenting Arrangement? When a parent has more than 40% of
the time with the child, the simple table calculations may not produce a fair result.
Under s. 9 of the FCSG, these inequalities can be reduced.
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iii. What are the “Guideline Incomes” of the Parties?
Federal Child Support Guidelines use the gross incomes.
All sources of income in a tax return are used.
Start by looking at Line 150 of tax return.
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iii. What are the “Guideline Incomes” of the Parties?
Income determinization is easy for T-4’ed employees and harder for self-employed individuals or individuals who are paid by corporations they own.
The 3 most recent returns are used and patterns in income are observed.
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iii. What are the “Guideline Incomes” of the Parties?
Is the payor a shareholder of a company?Possible to include all or part of “pre-
tax” income of that corporation. Must consider if the wages or fees are
paid to “non-arms length” individuals.
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iii. What are the “Guideline Incomes” of the Parties?
Is the payor a shareholder of a company?Possible needs involve accountant
to provide guidance on more complicated income determinization cases.
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iii. What are the “Guideline Incomes” of the Parties? Income can be “imputed” or
attributed to someone when:they are intentionally unemployed
or underemployed;they aren’t taxed on their income;income and been diverted;
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iii. What are the “Guideline Incomes” of the Parties? Imputed income (cont.):
they haven’t disclosed financial information when they were supposed to;
they are unreasonably deducting expenses from business income; or
other circumstances.
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iv. Are there Adjustments Needed to Move off the Table Amounts?
Adjustments might need to be made if:s. 9 applies,a person is “standing in place of a
parent”, the income is over $150,000,undue hardship, oradult children.
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v. Are the Additional Special Expenses to be Considered?
Important to remember that not every household with children is the same.
S. 7 is discretionary – necessity of expense in relation to child’s best interests, and “reasonableness” of the expense.
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v. Are the Additional Special Expenses to be Considered?
S. 7 (special) expenses include:after tax cost of child care needed for
parent’s employment or schooling,children’s portion of premiums for
medical/dental insurance coverage, the uninsured portion of health care costs
(dental, medical, orthodontic, optometric, etc.)
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v. Are the Additional Special Expenses to be Considered?
S. 7 (special) expenses (cont.):extraordinary cost of primary or
secondary school (e.g. some tutoring, some private schooling, etc.).
Expenses for post-secondary education.Extraordinary expenses for extra-
curricular expense.
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C. Other Issuesi. Maintenance Enforcement Programii. Child Support Recalculation Programiii. Retroactive Child Supportiv. What is involved in making an
application in Court for child support?
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i. Maintenance Enforcement Program A voluntary program to collect child
support.
They only enforce court orders, not written agreements.
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i. Maintenance Enforcement Program If payments made privately are on time
may be best to opt out.
But if payments are late, or causing strife, register.
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ii. Child Support Recalculation Program
Administrative service to help parents recalculate child support based on current tax information.
Not useful for self-employed or complex income determinizations.
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ii. Child Support Recalculation Program
Parents must have valid court order (or binding agreement).
Modest cost.
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iii. Retroactive Child Support The Supreme Court of Canada indicated that 4
things have to be considered:
1. Is there a reasonable excuse for what a recipient didn’t seek and order for child support earlier?
2. Has there been any “blameworthy conduct” on the part of the payor?
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iii. Retroactive Child Support 4 things (cont.):
3. What were the circumstances of the children during the time support was not paid?
4. Would an award of retroactive child support cause hardship to the payor?
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iii. Retroactive Child Support These awards are discretionary, not
automatic. Each case considered on its own facts. If an award is appropriate, it generally
doesn’t go back more than 3 years unless there was blameworthy conduct.
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iv. What is involved in making an application in Court for Child Support?
If income of payor is unknown, you can file and serve a document known as a “Notice of Disclosure”
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iv. What is involved in making an application in Court for Child Support?
Applicant must have: pay stubs for last 3 months; financial statements for any company that
the parent has 1% or more shares in; a certificate of attendance from “Parenting
After Separation” course. any additional income and financial
information.
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iv. What is involved in making an application in Court for Child Support? An application can be made either under the Divorce
Act or the Family Law Act and may be in either Court of Queen’s Bench or Provincial Court (Family and Youth). Documents can be found online along with instructions at: Family Law Information Centre:
www.albertacourts.ab.ca/familylaw/ Useful information can also be found on the Student
Legal Services website: www.slsedmonton.com/family/
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Reminder
Please fill out the feedback forms. Your input is essential in helping us to
improve future sessions.
56
DisclaimerThe information presented during
this session may have limited application to your particular
situation. The lawyers who are here this evening CAN provide legal
information that may give you a greater understanding of how the
law might apply to your own situation. The lawyers who are here this evening CAN NOT provide you
with individual legal advice.
57