The information below is general in nature and not intended to be a substitute for legal advice. It is not a simple matter to determine whether an individual is or will be liable for child support. If you are concerned that you may be liable for support or wonder whether you are able to claim child support following a separation, please contact our offices.
Upon a separation, a person may be required by the court to provide support for a dependent spouse or child. If the parties agree, support can be provided through a separation agreement.
The rules relating to child support apply equally to opposite-sex and same-sex relationships.
The Amount of Support
In all cases, the amount of child support is calculated on the basis of the Child Support Guidelines, which stipulate the support payable. The amount of support is based on the income of the non-custodial parent, generally without regard to the income of the custodial parent.
In addition to a basic amount of child support, the court can also order the parents to share the cost of such additional expenses as day-care, medical and dental expenses, university education and extracurricular activities.
In Alberta, child support is generally paid until a child is 18 years old, although the payments can continue beyond the age of 18 if a child remains dependent because of illness, disability or the pursuit of post-secondary education.
It is important to be aware that child support is not tax-deductible and is not taxable income for the parent receiving the support.
Who is Liable to Pay Child Support?
Typically, the non-custodial parent pays child support to the custodial parent for the care and maintenance of the child. Whether an individual qualifies as a parent and is liable for support is determined under either the federal Divorce Act or the Family Law Act.
If the parties are unmarried or do not wish to divorce, child support is governed by the Family Law Act.
Where the parties are married and intend to divorce, child support may be sought under either the federal Divorce Act or the Family Law Act. The Court will make an order pursuant to the legislation that is most favorable to the interests of the child.
The Divorce Act
Under the Divorce Act, a person ending a marriage may be required to pay support for a “child of the marriage.” This phrase is defined broadly and includes children who are:
A child of both of the spouses;
A child for whom both the spouses “stand in the place of a parent”; or
A child for whom one spouse is a parent and the other spouse “stands in the place of a parent.”
In determining whether a person “stands in the place of a parent” the Court will look at the following factors:
Whether the child participates in the family as would a biological child;
Whether the person provides financially for the child;
Whether the person disciplines the child as a parent;
Whether the person represents to the child, the family, the world, either explicitly or implicitly, that the person is a parent to the child; and
The nature or existence of the child’s relationship with the absent biological parent.
The Family Law Act
If the parties are not married at the time of separation, are not seeking a divorce, or an application is brought pursuant to the Family Law Act, a different test applies to determine whether a person is obligated to pay child support.
Under the Family Law Act, it is not necessary for a person to “stand in the place of a parent” in order to be liable for support. Instead, a person who is neither the biological or adoptive parent of a child may be liable for child support if the person has made a financial contribution towards the support of the child.
An individual becomes a “parent” and thereby liable to pay support if they are a guardian of the child or if the person is a “standing in the place of a parent" as defined by section 48 of the Family Law Act.