It's important to understand how the laws regarding child support, child custody, and spousal support may apply to you and your family's particular divorce situation. Alberta family lawyer Mark Baril talks about the nuances of child custody and support as well as spousal support or alimony. Learn about the factors a judge will consider in awarding child custody and in determining the amount and duration of your child support and spousal support.
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Divorce Magazine Podcast: Alberta Family Lawyer Mark R. Baril Podcast on Child Custody, Child Support & Spousal Support
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speakers: Family Lawyer – Mark R. Baril. Mark Baril is an Alberta family lawyer and partner at Stringam Denecky LLP in Lethbridge and Fort McMurray. He focuses on family law and divorce, but also maintains a general practice involving corporate and commercial law. Mr. Baril has appeared before every level of the court in the provinces of Alberta and British Columbia. He has a strong business background and actively participates in his local community. Learn more at www.stringam.ca
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How does a divorcing couple decide whether sole custody or joint custody is best for their family?
One of the key principles to be considered when determining custody is what is in the best interest of the children. The term custody refers to the right to make decisions on behalf of the children. Custodial decisions often include major decisions, such as education, religious upbringing, employment, place of residence, medical care, and dental treatment, as well as minor decisions, such as the child's daily activities.
Sole custody is ordered to reduce conflict amongst parents where there is a high conflict divorce situation, but it's not relied on by the courts unless there are extenuating circumstances, such as physical distance between the parties, abusive behaviour, or an inability of the parents to communicate about which decisions would be in the children's best interest. It's rare that a court will order sole custody if the parties can work together in the best interest of their children.
Joint custody provides each parent with an equal right to make decisions. It's the inclination of a court to make an order for joint custody, which encourages parties to work together cooperatively. The court may order that certain decisions can be made solely by one of the parties, but the majority of decisions would be made jointly by both.
The amount of time a child resides with each party may range from residing solely with one parent to the parties having equal or shared parenting. The court encourages maximum contact with each parent, but only so far as it is in the child's best interest. There is no presumption in favour of shared parenting. The overriding principle is to ensure decisions are made in the best interest of the child. Each family's needs will be different as they discuss whether or not a parent should have sole or joint custody.
How can a parent increase their chances of being awarded primary or sole custody?
Decisions about custody are made after considering a number of factors, such as the historical care of the children and the involvement of each parent in caring for them. There are also realistic considerations - such as work schedules and health challenges - that might reduce one parent's ability to care for the children. In order to increase one’s chances of being awarded primary care of the children, it's important to ensure all major responsibilities and arrangements related to the children are in place, including school enrolment, childcare, and extracurricular activities. The historical care of a child is a major factor the court considers. A stay-at-home mom or a stay-at-home dad will likely be considered to be the primary parent after separation; however, this can be amended based on changes of circumstances within the family unit.
Is there any legal or practical reason why fathers should not be awarded custody of their children just as often as mothers?
There are no legal reasons as to why fathers should not be awarded custody as often as mothers. The court is to be unbiased when determining what is in the best interest of the children. However, we are faced with societal norms and, in many cases, family norms. In determining the day-to-day care of the children or their primary residence, there are various factors to be considered. In many households, families make the decision for one parent to remain in the home to care for the children while the other becomes the primary income earner. Although these roles might not be gender-specific, the decisions of the family in this regard will affect the decisions of the court in determining primary care of the children after a separation.
If the ex-wife and two children have moved in with her boyfriend, does the father still have to pay child support?
It is the right of the child to receive child support from the payor parent. If a child's primary residence is with one parent and that parent begins living with a new significant other, there will likely be no effect on child support or the requirements of the payor parent. The only time a change like this might affect child support is if the parties have shared parenting and the children experience a great difference in lifestyle from the home of one parent to the home of the other. The court may consider an application to vary the child support amount to help equalize the lifestyle, but the success of that type of application is limited.
Should the custodial parent withhold visitation if the non-custodial parent intentionally delays or withholds child support?
You should always keep disputes related to child support separate from matters related to access or parenting time. It's best to come to the court with clean hands, meaning that you're not guilty of misconduct of your own. Withholding access from the other parent may tarnish your character in the eyes of the court. It’s important to keep those issues separate and to encourage contact between your child and the other parent if it’s within the child's best interest.
If someone is genuinely struggling to make child support payments, is there anything he or she can do to have the amount reduced?
Child support is based on a table amount set out in the Federal Child Support Guidelines. It's based on the payor’s income level in each calendar year. The court usually refers to the payor’s income from the previous calendar year because it is the best evidence of what their income may be this year. Where the payor has suffered a job loss, there may be other options available. Under section 10 of the Federal Support Guidelines, you may be able to consider an application to decrease child support on the basis of financial hardship. This is a very hard standard to meet and it is often not successful, but there are cases where it is applicable.
One factor to consider is whether the parties have entered into a previous agreement to vary child support on a specific schedule, perhaps annually once their income is determined from the previous year. If they have entered into such an agreement, the court will likely uphold it and ensure the child support is adjusted properly in accordance with its terms.
Sometimes parents reach agreements that are different from those which would be ordered by the court. The court will accept agreements for a different amount of child support as long as the parties can show the children's needs are being met in a fashion the court accepts and agrees to. If each parent spends a great deal of time with the children, but not enough to meet the test for shared parenting, then the parties may reduce the child support amount in consideration with the increased costs experienced by the payor parent who is exercising a great deal of time with the children.
What if somebody quits their job just to intervene with their ex's support income?
Under the Federal Child Support Guidelines, the court has the ability to impute income on a payor parent or spouse – particularly if he or she has become intentionally unemployed or underemployed for the purpose of subverting their payment responsibilities. The court may look at the previous year's income or at the person's income earning abilities. It's not that a payor parent can never accept a new position that would allow them to have more time with their family; the court considers whether or not the decision was made with the primary goal of decreasing support.
When does child support end?
Child support is payable for as long as the child remains a child of the marriage as defined by the Divorce Act or is otherwise entitled to receive child support pursuant of the Family Law Act. It continues at least until the child reaches the age of 18 and often beyond that where the child is attending post-secondary education or trade school and remains dependent on either of the parents. In those cases, child support may continue until the child has completed their education and is no longer dependent on the parents. Other considerations include resources available to the child through employment income, scholarships, or other sources. The duration of child support is based on the child’s needs as they grow into their adult lives.
When does child support end in cases of a special needs child where it is possible the child might never leave home or become employed?
There are a number of other factors that must be taken into account where you have an adult child who has a disability. The child may require a greater amount of care throughout the day that might restrict the parent's ability to work even after the child has grown into adulthood. The courts will look at the resources available to the child through government assistance and other sources as well as the restrictions on the parent who is caring for the child into their adulthood.
If an ex-spouse moves in with a new partner, does the payor spouse still have to pay spousal support?
Spousal support, or alimony, may also be varied if there's been a change in circumstances. However, just because your ex has taken residence with their new significant other, does not guarantee your obligation to pay spousal support will be extinguished. There are a number of reasons why spousal support may be payable and a number of factors to be determined in considering whether a spouse may still be entitled to receive support and how much and for how long. Living with a new significant other is not determinative on its own. It’s best to seek legal advice to consider the facts of your case and whether a variation of spousal support may be available.
What factors does a judge consider in determining the amount of spousal support awarded?
Once it is determined that either spouse is entitled to receive support, the court must consider the quantum or the amount of support to be paid and by whom. Some of the primary factors considered by the courts in determining the duration of spousal support include the length of the relationship, the ages of the parties, the incomes of the parties, the role each party played throughout the relationship, whether or not there are children who require ongoing care and by whom, the standard of living during the relationship, and whether either party has been disadvantaged financially as a result of the relationship or its breakdown. The amount of child support being paid will also be taken into consideration if applicable. Finally, the court looks at the other resources or sources of income available to each party. Spousal support is based on a percentage of the total family income, as it's intended to balance that income to some degree between the parties.
Do men ever receive spousal support?
Though not commonly seen, men can certainly be entitled to receive spousal support. The same factors that would be considered in determining whether a woman is entitled to spousal support are also applicable to men. Spousal support is not gender-specific.
What can a spousal support recipient do to protect against the payments ending with the payor’s death or disability?
Many agreements for spousal support require the payor to maintain life insurance payable to the recipient in case of the payor’s demise. In rare cases, someone could carry disability insurance; however, this is generally cost-prohibitive. Another option is to secure the payment for spousal support against the estate of the payor, ensuring that the support payable will continue even after the payor’s death.
When does spousal support end? Can it possibly be permanent?
Spousal support can be permanent, time-limited, or paid in a lump sum that is not tax deductible. An indefinite order for support might not go on forever, but it has no specific time for the order to discontinue and will be varied in the future. The time-limited support is ongoing for a specific period of time.
The court determines the appropriate duration for the support. In the case of a short-term relationship, the support will be limited to a very short duration. For long-term relationships of over 25 years, the duration of support will be indefinite, making support payable until the payor’s retirement and possibly thereafter. The parties are always welcome to reach their own agreement as to the duration and the amount of support payable.
Many people will ensure their agreement for spousal support includes an opportunity to vary the amount or the length of time it is payable in the event of a change of circumstance, such as a change in career. A change might also occur as a result of retirement, a new relationship, an increase of income, or perhaps even a loss of income. There's no definite time for when spousal support ends, as it will vary based on the facts of each case.
Since spousal support is deductible and child support is not, is there a way to prevent a payor of both spousal and child support from claiming all of the payments are spousal support so that he or she can deduct them?
One of the key factors in discussing the differences between the tax implications of spousal support and child support is that there is a net effect on both parties. It's not up to the payor to decide whether or not he or she wishes to deduct the child support payments. Child support is paid from after-tax dollars and is not deductible. The receiving parent does not claim child support as an income and it is therefore not taxable.
This differs from spousal support, which is tax deductible to the payor as long as the support is paid on an ongoing basis. The recipient must declare it as income. This may work out to the benefit of the parties, because the payor may be in a higher tax bracket and it would result in a tax savings of up to 39% in Alberta. The receiving spouse may be in a low tax bracket and pay very little tax on the support they receive.
It's important to ensure that a court order sets out what is included as spousal support and what is included as child support. If the spousal support is not titled as spousal support in the order, then the tax deduction claim will likely be denied by Canada Revenue Agency.
Is it possible to have the amount of spousal support varied if something happens to the payor’s ability to pay?
Depending on the circumstances, you may be able to apply for a variation. Many parties reach agreements stating that no variation may be available regardless of any change in circumstances, including windfalls of money or even the loss of a job. In some cases, the court may take extreme circumstances into consideration – such as a major disability suffered by the payor - and allow a variation despite the agreement.
Changes in your income, job, or relationship status may allow the court to review the support order to determine if the amount remains appropriate or if the duration ought to be varied. It's also possible for parties to reach agreements on their own through negotiation. The parties are often able to reach an agreement that works for their family’s needs better than a court could possibly create. If the parties are unable to reach a negotiated agreement, then they'll seek the assistance of the court and ask the judge to review the circumstances and make an order.
Certified Divorce Financial Analyst
Business Valuators / CPAs