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Child Support & Spousal Support

Child support and spousal support

Child Support & Spousal Support

The Calgary courts have jurisdiction over both child support and spousal support and can make whatever order in these respects as to the court seems just and appropriate.  Child support is the right of the child.  While the parties may agree in advance of going to court what the child support payments should be, the court will only approve it if it meets with the legal requirements.  Again, in the case of child support, this is the right of the child so it is not a right of either of the parents to agree to something which is inappropriate.  The Federal Child Support Guidelines have application and basically govern what the child support payments will be.

The child support payments are determined based on a few different factors:  How much do the parents earn for a living through employment or other income?  How much parenting time does each parent spend with the children?  What are the extraordinary expenses, such as is the child in ballet, or is the child in hockey, or other such costs, orthodontist costs, special travel costs?  All of this needs to be assessed and determined.  The Federal Child Support Guidelines govern and they are specific to the province.  Every law firm worth its salt will subscribe to a computer software program which feeds relative information into the software and then spits out the answer based on the governing legislation.  In the case of child support, it really is almost a computerized answer that one will get.

The important part for the lawyer is to insure that in the case of the payee or the receiver of the child support payment, That all of the special expenses and costs are noted for the calculation and also that the payor is being assessed at their true and appropriate income and that they are not hiding income.   For example, in the case of self-employed individuals or those who are employed through a company but they control their own company, there are lots of little tricks that people will use to show a lower income than what they truly are earning.  The Calgary family law courts are alive to these tricks and issues and they can impute income.  Conversely, if you are the payor, you will want a good lawyer to help you to be sure that you are not being treated unfairly by the courts and having income imputed to you which does not exist, with the result that you end up paying child support based on a higher income than you ought to be paying.

Parenting time was mentioned.  If the parent have 50:50 time with the child or children, that will impact upon how much child support gets paid.  If one parent has the majority of the time, for example the stereotypical situation where the children stay with the mother but see the father every weekend or every second weekend, this all has an impact on how the child support is calculated.  Sometimes, when you are the payor, increasing your access time slightly to approach 50:50 time can have an enormous impact on how much you pay.  You may want to spend more time with your children anyway.  So all of these factors need to be discussed with the Calgary Family Law Lawyer who you hire to help you.  You should choose a lawyer in whom you have faith and confidence to do a good job.  Your lawyer needs to know all of these legal considerations.  Most highly experienced Calgary Family Law Lawyers should be able to guide you properly through this legal landscape.  Family law is always fact sensitive and a good lawyer can make all the difference for the outcomes.

Spousal support is really at the discretion of the court.  When we think of spousal support, we typically think of a woman/wife who stayed at home to rear the children, therefore lost opportunities for education, career advancement, and really sacrificed her own employment opportunities for the family.  After a long marriage of 20 years or 25 years, et cetera, the marriage breaks down and you now have one spouse totally disadvantaged with almost no career opportunity, being advanced in age, with no experience, who was a stay at home mom.

In that stereotypical circumstance, the court is likely to make a permanent support order where that wife/mother should be kept in the same circumstance that she found herself in throughout the marriage and at the time that the marriage broke down.  This will be determined by the husband/father’s ability to pay based on not only his income but his overall wealth and assets, looking again at the self-employed or the owner of his own company who can move money around and give an opaque view as to the true financial capacity.

These are the high network cases where lawyers really have to dig into the evidence, lawyer’s have to require documents from the payor which can be done through court proceedings, probably depose through a formal interrogation under oath the payor, to find anything hidden, and then present evidence to the courts as to what would be an appropriate payment, and in these circumstances it might be approximately a third of what the father/husband is earning.  That may seem like a lot of money to the payor who, in the stereotypical example, is the father/payor but need not be.

If the converse were true, that the father stayed home and reared the children and the mother was the sole breadwinner, the courts would apply the same law, as we say justice is blind, but in practice we usually find that the mother stays home with the children so we have framed it in this sense as that is the more common scenario.  The court may make an interim order right away as soon as the parties separate so that the mother or the payee, receiver of the payment, is not left in a destitute situation.  Often those interim orders become the final order at the time of divorce and it is so critical to have a competent lawyer representing you in these cases.  You may be able to stay in a matrimonial home.

There are too many factors to go through them in this forum.  But this gives you an overall sense of the issues that need to be addressed and you would be well advised whether you are the payor or the payee to get a strong legal representation from the outset.  It is so important what is provided in evidence throughout, the timing, the strategy, the more a lawyer gets experience, the better they get at it.  This is commonsense.  Merchant Law has been a leading law firm in family law across western Canada for 25 years.  The lawyers within the firm can draw on that bench strength.  Merchant Law Calgary would be happy to assist you and can provide you with a free telephone consultation.

What are Some of the More Specific Considerations for the Court When Considering an Order of Child and Spousal Support?

The Family Law Act of Alberta has application.  It is notable that recently Alberta has joined the rest of Canada in legislating that unmarried, so called common-law, couples are now to be treated the same way as married couples.  Leaving aside that this is somewhat controversial, or was, the controversy is now over.  Alberta is the same as the rest of Canada.  It didn’t use to be.  It is now.

The parties can agree on a spousal support order and the courts will likely defer to the parties agreement.  If the parties both have independent counsel, it is almost unheard of that the court would refuse to make an order in accordance with what the parties have agreed for spousal support.  The court will want to make sure that neither party is taking advantage of the other.  The lawyers still have to show the court that the agreement being made is fair and reasonable.  It is a good idea to get a court order in place that may be enforceable.  One supposes that the parties could make an agreement between themselves but if there is no court order and the payor stops paying then the payee is left with little to no recourse.  It is advisable to get the spousal support order confirmed by the court.

As stated above, in relation to child support, this really needs to be according to the Federal Child Support Guidelines as they apply in Alberta.  It is a right of the child so the parties cannot make agreements willy nilly.  Rather they have to follow the Child Support Guidelines.

Both the  Divorce Act (covering married couples) and the Alberta Family Law Act (covering common-law “marriages”) will look to some of the following factors but also whatever is considered germane by the court:

  • What financial advantages and disadvantages will be faced by the spouse after getting separated.
  • Child care will be fairly divided between both whether it is related to financial cost or something else.
  • Providing for spousal support which maintains a reasonable standard of living comparable to what was enjoyed throughout the marriage, which should take into consideration the payor’s capacity, but also with a view to the payee becoming financially independent. *Taken in terms of what was before stated about a long marriage where it may be that the stay at home spouse has no capacity to ever become financially independent if they were at home throughout a very long marriage and are now old and unemployable, practically speaking.  In marriages of short duration or marriages where both spouses remain young, they are able to retrain, reeducation, and enter the workforce.  So there are a plethora of considerations.

Every case turns on its facts.  Your Calgary family lawyer needs to build your case and present the facts in the most favourable light.  Your Calgary family lawyer’s capacity to advocate and present the correct evidence can make such a difference.  There is no question about that.

Factors for Spousal Support

Your lawyer can argue whatever is relevant but some of the factors which are typical are:

  • How long did the couple live together?
  • What are the current responsibilities of each spouse in the marriage or marriage like relationship/common-law relationship?
  • Where there any previous agreements or arrangements made by the couple regarding spousal support?

Those are some of the factors, there may be other relevant factors to place in evidence.  Is there any disability?  What is the relative education of the spouses?  What were the careers of the spouses prior to and during the marriage?  There is no end to what may be relevant.  You have to speak to a lawyer.  But this gives you an idea of where the court would be coming from in trying to determine what would be just and appropriate.

The court is guided by the legislation and the common law case law precedents which state that both spouses should be kept in the same situation as they were during the marriage but with a view to both becoming financially independent one of the other, if possible.  That can be a big if in long relationships or where one spouse is disabled, et cetera.  Every case is different and fact-sensitive.  Your lawyers can try to make an agreement as to spousal support but the agreement would be based on what they think the court would order based on the evidence.  So you have to tell your facts to your lawyer and your lawyer can decide what is the appropriate angle to play to get you the best result possible.  Your lawyer represents you.  Your lawyer cannot change the facts but your lawyer can present the facts in the most beneficial light for you, whether you are the payor or the payee.

Child Support

When there are children, the Federal Child Support Guidelines govern.  It does not matters whether you were married or not.  If there are children, the Federal Child Support Guidelines govern.   If you were married, you have the Federal Divorce Act.  If you were not married, you have the Alberta Family Law Act.

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