At Mincher Koeman, we believe in keeping clients informed as much as possible. To that end, we have compiled a list of questions that come up often, in an effort to provide basic information on our client’s most pressing concerns.

Separation & Divorce

When am I considered legally “separated” from my spouse/common law partner?

A couple is generally considered “separated” when at least one spouse states that they wish to end the relationship, and the spouses begin living “separate and apart” with no reasonable chance of reconciling. In some circumstances, spouses may be considered to live separate and apart while still living in the same home.

What are the grounds for divorce in Alberta?

Under the Divorce Act, a divorce can only be granted if there has been a “breakdown of the marriage”. Most often, this breakdown is established once the couple has lived separate and apart for at least one year. Less commonly, a divorce may be granted in less than a year on the basis of adultery or cruelty.

What is a separation agreement?

A separation agreement is a contract between a separated couple that sets out their agreement on various matters arising from their marriage or cohabitation, including parenting arrangements, child or spousal support, living arrangements, property division, and rights to one another’s estate. Separation agreements can be created through negotiation or mediation and may incorporate terms from the couple’s marriage or cohabitation agreement (if they have one).

Do I have to go to trial to get divorced?

Most divorces do not require a trial and are resolved by negotiation between the parties or another form of alternative dispute resolution, such as family mediation or arbitration. A court hearing, such an application/motion or trial, may be required when a couple is unable to resolve an outstanding issue through less formal means.

Common-Law Spouses

When is a couple considered to be common-law spouses?

Common-law relationships are formally known as “adult interdependent partnerships” in Alberta, as per the Adult Interdependent Relationships Act. In order to establish a common-law relationship in Alberta, the couple must meet one of three criteria:

They cohabited in a relationship of interdependence for at least three years;
They cohabited in a relationship of interdependence with some sense of permanence for less than three years and share a child by birth or adoption; or
They have entered into a formal Adult Interdependent Partnership agreement together.

Can my partner and I be considered common-law spouses if our relationship is not sexual or romantic?

Yes. Under Alberta’s Adult Interdependent Relationships Act, two platonic friends can be considered common-law spouses if they are in a relationship of interdependence or enter into an Adult Interdependent Partnership agreement.

What is a “relationship of interdependence”?

The Adult Interdependent Relationships Act defines a relationship of interdependence as a relationship (other than marriage) in which two people share their lives with each other, are emotionally committed to one another, and function as an economic and domestic unit.

Parenting Issues

What is “parenting time?”

Parenting time is the amount of time a child spends in each parent’s care after they separate or get divorced. It was previously referred to as “access”.

What is “decision-making responsibility”?

Decision-making responsibility was previously known as “custody” and refers to a parent’s legal authority to make decisions about their child’s upbringing and care. This can include a parent’s ability to decide matters relating to education, healthcare, religion, spiritual or traditional practices, and discipline.

Do grandparents have a right to see their grandchildren?

Grandparents do not have an automatic legal right to see or contact their grandchildren. However, the court may grant an order giving a grandparent access to, or contact with, their grandchild if the grandparent can show it is in the child’s best interests to do so.

What happens if my ex-spouse or I want to move away with our child?

A parent usually cannot make the unilateral decision to move away with their child if it will cause a material change to a parenting arrangement or impact the other parent’s parenting time. The parent who wishes to move must apply to the court for permission to do so. The court will consider all of the circumstances to determine whether the move would be in the child’s best interests.

Child Support

What is Child Support?

Simply put, child support is financial support to provide for your child’s food, clothing and shelter. The presumption is that, while in a relationship, parents jointly financially provide for their children, and when couples separate or divorce, this should not detract from the parents’ obligations in continuing to provide for the care and needs of their children. Child support is intended to ensure that, even if the parents are no longer in a relationship, they will still provide financial support for the children, and the children will continue to have a similar standard of living. Essentially, it is support for the children, not the adults.

Why am I paying it to the other parent then?

The parent who pays child support pays financial support to the other parent for the children that are in the other parent’s care. As the caregiver of the child, the parent who receives the money, does so on behalf of the child. Still, accepting financial support does not change the nature of the funding; it is to be used to support the child and not the parent.

Why do we use the Guidelines and Tables to determine child support?

The governing legislation for child support, the Federal Child Support Guidelines (“FCSG” ), used for married couples and the Alberta Child Support Guidelines (“ACSG” ), used for common-law couples, sets what child support is payable as set out in the applicable tables, according to the number of children who can claim support and the income level of the parents. This means every child in the same province, with parents who have a similar income, should receive the same child support.

What is child support meant to cover?

There are two categories of expenses child support is meant to cover:

Basic expenses related to food, clothing, and shelter for the child; and
Special and extraordinary expenses (otherwise known as “section 7 expenses”) such as:
- Childcare expenses;
- Medical and dental insurance premiums attributable to the child;
- Health-related expenses that exceed insurance reimbursement by at least $100 annually (i.e. professional counselling, speech therapy, etc);
- Extraordinary expenses for primary or secondary school education or educational programs that meet the child’s particular needs;
- Expenses for post-secondary education; and
- Expenses for extracurricular activities.

How do I know if child support is being spent properly?

You don’t. If your child is appropriately fed, clothed and has a comfortable home, then you can assume the child support is being spent properly.

How is child support calculated? What does the “table amount of support” mean?

The method for calculating child support depends on which category of support you are referring to:

Basic child support is determined by referring to the amount set out in the applicable table according to the number of children under the age of majority to whom child support relates and the income of the parent paying support; and
Special and extraordinary expenses are determined by sharing the expenses between the parents in proportion to their respective incomes after deducting any contribution to the expenses from the child.

How is “income” calculated when determining child support?

In a nutshell, “income” means the annual income of a parent. It is not just a party’s Line 150 income. For example, items that can be deducted for federal tax purposes may not be deducted when determining your income. Income can be determined by the court using the following methods:

Agreement between the parents in writing as to their annual income, if considered reasonable;
Referring to sources of income set out under heading “Total Income” in the T1 General form issued by the Canada Revenue Agency, which is then adjusted by Schedule III of the Alberta Child Support Guidelines;
Referencing the parent’s income over the last 3 years and determining a “fair and reasonable” amount in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years;
In cases where the parent is a shareholder, director or officer of a corporation, the court may consider all the money available to the parent for payment of child support, including pre-tax income of the corporation or amounts commensurate with services the parents are providing to the corporation not exceeding pre-tax income; and
Imputing an amount of income to the parent that is considered appropriate in the circumstances, including situations where the parent is intentionally under-employed or unemployed.

Does the court look at my net income, or my gross income?

Child support is determined by considering a parent’s gross income.

Can I deduct any expenses from my gross income when determining child support? What are Schedule III adjustments?

No, the Court will not accept all expense deductions.

Where a parent earns self-employment income and deducts amounts for salaries, benefits, wages or management fees, the court will only accept those deductions and not add them back for the determination of child support where the parent establishes that the payments are:

Necessary to earn the self-employment income; and
Reasonable in the circumstances.

Schedule III adjustments affect the determination of a parent’s annual income when using the sources of income set out under the heading “Total Income” in a parent’s T1 General form issued by the Canada Revenue Agency. The stipulated expenses in Schedule III are the deductions that are accepted when determining income and include:

Employment expenses – concerning dues and motor vehicle travel expenses;
Child Support – support received that is included to determine total income;
Spousal Support – spousal support received from the other spouse and any universal childcare benefit included to determine the spouse’s total income;
Social Assistance – any amount that is not attributable to the spouse; and
Business Investment Losses– the court will deduct the actual amount of business investment losses suffered by the spouse during the year.

Does the court use current income to set child support amounts?

Yes, the current income is used, although often support will be based on the previous year’s income simply because that is often the only information available.

What is “imputed income”?

“Imputed income” is the amount of income that the court will attribute to a parent that they consider appropriate in the circumstances. In some cases, that means the court will set what the appropriate income would be where the spouse with the obligation to pay support fails, through intentional actions, to maximize income from employment. In other cases, the court will deem that a spouse makes a specific higher amount, where that spouse has attempted to hide income in order to undermine or avoid their child support obligations.

Are there situations where the table amounts may not apply?

Imputed Income: The court may decide not to apply the table amounts and choose instead to impute an amount of income to a parent that it considers appropriate where:

The parent is intentionally under-employed or unemployed;
The parent is exempt from paying federal or provincial income tax;
The parent lives in a country where the income tax is significantly lower than that in Canada;
It appears the income has been diverted which would affect the level of child support to be determined;
The parent’s property is not reasonably utilized to generate income;
The parent has failed to provide income information when under a legal obligation to do so;
The parent unreasonably deducts expenses from income;
The parent derives a significant portion of their income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that is exempt from tax; or
The parent is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

Shared Parenting: The court may also decide to depart from the table amounts when dealing with a shared parenting arrangement. This arrangement involves one spouse exercising parenting time with the child for not less than 40% of the time over the course of the year. In these circumstances, the amount of child support would be determined by taking into account the amounts set out in the applicable tables, the increased costs of shared arrangements and the conditions, means, needs and other circumstances of each spouse and any child for which support is sought. All three of these factors should be considered equally.

Split Parenting: In split parenting arrangements, which describes an arrangement where each spouse has decision-making responsibility and the majority of parenting time for at least one child. In these situations, the amount of child support awarded would be the difference between the amount each spouse would otherwise pay if each parent sought an order for child support order from the other.

Over Age of Majority: The court may also depart from the table amount where the child is over the age of majority. In these cases, the court would order what it determines to be an appropriate amount of child support after having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

Undue Hardship: On either of the spouse’s application, a court may award an amount of child support that is different from the table amount if it is found that the spouse making the request or the child for whom the request is made, will suffer undue hardship.

Circumstances that may cause a spouse or child to suffer undue hardship include:

The spouse having unusually high expenses in relation to exercising their parenting time (access) with the child; and
The spouse having a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

Do I have to apply to the court to get child support?

No, upon separation you and your ex-partner or spouse may agree to pay child support without the involvement of the courts. However, these arrangements are not legally binding so it may become necessary to come to court to obtain a legally enforceable document for the payment of child support. The Maintenance Enforcement Program can only enforce a child support order, not a private agreement between the parties.

Can the other parent and I decide on our own how much child support will be paid?

Yes, parents may decide on how much child support to pay, as long as the amounts set in the child support guidelines are the base amount payable. Therefore, it is always open to parents to pay more than the amounts stipulated in the governing legislation.

Does my new partner’s income affect support payments?

No, not usually. Considering child support is the obligation of the parents, a parent’s subsequent marriage or relationship does not generally affect existing child support obligations. Your new partner’s income may become relevant if you make an application for undue hardship, and the court undertakes a ‘Standards of Living Test’ as set out in Schedule II. Despite fulfilling the requirements for a determination of undue hardship, a court will deny your application if your household, as the spouse claiming undue hardship, would have a higher standard of living than the household of the other spouse after a determination of child support is made.

Do I have to pay support for my step-children?

No one would be under an obligation to pay support for their step-children unless a child support order was sought against them and it was established that they stand in place of a parent and that the amount to be paid is considered appropriate. A step-parent would be considered to be standing in the place of a parent if the person:

Is the spouse of a parent of the child is or was in a relationship of interdependence of some permanence with a parent of the child, and
Has demonstrated a ‘settled intention to treat the child as the person’s own child’ which can be determined by considering factors such as the child’s age, the duration of the child’s relationship with the step-parent, whether the step-parent has provided direct or indirect financial support for the child and whether the person has considered adopting the child or changing the child’s surname to that person’s surname.

Do I have to claim child support on my taxes?

No, child support payments are not considered taxable income. Therefore, child support payments are neither deductible by the payor nor taxable for the payee.

We share decision-making responsibility and parenting time (or have a “shared custody” arrangement). Does this affect our income tax?

Yes, having an arrangement where you share decision-making responsibility and parenting time (often called a “shared custody” arrangement under the old Divorce Act terminology) may affect income tax. For example, when claiming the amount for an eligible dependent, only the recipient parent can claim that tax benefit and not the payor parent. In situations where there is a shared custody arrangement or court order clearly establishing that you and another person are required to make child support payments, neither of you would be able to claim the amount for an eligible dependant for that child. However, in this case, it may be possible for you to claim the amount for an eligible dependent as long as you and the other party agree that you can make that claim. If no agreement is reached, then neither of you can claim an amount for an eligible dependent for the child. Even if an agreement is reached, the claiming parent would only be able to claim for the time the child is in their care.

What if the payor doesn’t give me their financial information every year as required in our order?

Where a parent has failed to provide income information when under a legal obligation to do so, the court may impute the amount of income to the parent that it considers appropriate in the circumstances. The court may also, on application, consider the non-obliging spouse to be in contempt of court and award costs in favour of the applicant or make an order requiring the other spouse to provide the required documents to the court or the other spouse.

Do I have to pay child support if my child is no longer living with either parent?

It depends.

If the child is under the age of majority but has withdrawn from the care and control of their parents and is living independently, then child support payments would no longer need to be made. The obligation to pay would be revived if the minor abandoned their independent lifestyle and returns to the care of their parents;
If the child is over the age of majority, and not living with either parent but has not withdrawn from their parent’s care because they are a full-time student, child support would still have to be paid; and
If the child is no longer living with either parent because they are a spouse or interdependent partner, no child support would need to be paid.

It should be noted that parents may still be obligated to pay child support if an application for support is made by a person who has care and control of the child (i.e. an aunt) or by someone with the permission of the court where it is considered the application would be in the best interests of the child.

What is retroactive support?

Retroactive support refers to child support amounts that make up for not paying the proper amount of child support in the past; in other words, back-dated child support. Once a court determines that retroactive child support should be ordered, as a general rule, the award should be retroactive to the date of effective notice but no more than three years into the past. Effective notice does not require the recipient parents to take legal action. All that is required is that the topic of child support not being paid or not being enough is canvassed. This three-year limit encourages recipient parents to be proactive.

What do I do if the other parent isn’t paying their child support?

You first put the other parent on notice that they have an obligation to pay child support, by asking for child support in writing. If they still do not pay, you may seek an order for child support from the court. Once you receive an order for child support, you can have it registered with the Maintenance Enforcement Program, which has tools for compelling the payment of child support, such as suspending the other parent’s license until payment is made.

When do I stop paying child support?

For divorced parents, child support payments end when a child is either:

Under the age of majority but is no longer under the care and control of their parents; or
Over the age of majority is in no longer under the care and control of their parents and can obtain the necessaries of life.

The age of majority in Alberta is 18 years old.

For parents separated from common-law relationships, child support ends when either:

A child reaches the age of majority and can withdraw from their parent’s care because they are not full-time students; or
The child turns 22.

I already have a child support order. How do I change it?

Child support orders may be changed or varied prospectively or retrospectively, by application to a court when there is:

A change of circumstances that occurs after the making of the last child support order; or
Evidence of a substantial nature that was unavailable in the previous hearing that has since become available.

Circumstances that can give rise to the making of a variation order include:

Any change that would result in a different child support order being made; or
Any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support.

What are “lying-in expenses”?

Lying-in expenses are expenses that are meant to contribute to the reasonable costs of being pregnant and carrying a baby to term and preparing for the birth of the baby. Costs cover expenses related to maternity vitamins, maternity clothes and baby-related equipment such as cribs. These expenses may be sought as part of a child-support application to the court. An application for lying-in expenses can be made either during the pregnancy or after the birth of the child. It is common for the application to be made after the child is born as it makes things easier by combining the application with one for child support.

Spousal Support

Will I have to pay my ex-spouse or common-law partner spousal support after we separate?

While a spouse may apply to the court for an order granting them spousal support after their separation, spousal support is not an automatic right. A court may grant spousal support where one spouse has been disproportionately affected financially by the separation or divorce, a spouse is in financial need and the other has the ability to pay, or the spouses have already made an agreement that provides for the payment of spousal support in the event of a separation.

Are common-law partners entitled to spousal support?

Common-law partners can apply for spousal support under Alberta’s Family Law Act if:

They have children together and have lived in a marriage-like relationship; or
They do not have children together but have lived together in a marriage-like relationship continuously for a period of not less than three years.

Meeting these requirements does not mean that spousal support will be automatic. The Court must still examine whether the circumstances listed above are present.

How much spousal support do I need to pay, and for how long?

The amount and duration of spousal support depend on a variety of factors, including:

The length of the marriage or cohabitation and each spouse’s role in the relationship (i.e. did one spouse leave the workforce and stay home to raise the couple’s children?); and
Each spouse’s earning potential, needs, and financial means.

In many cases, judges will use the calculations set out in the federal Spousal Support Advisory Guidelines as a roadmap for determining the appropriate amount and duration of support. However, as these guidelines are not law, a judge has the discretion to deviate from them.

Property Division

How is property divided between a couple after they separate/divorce?

In most cases, family property is divided equally between a couple after the relationship ends. “Family property” (formerly, “matrimonial property”) includes all assets and debts acquired by a couple during their marriage or common-law (adult interdependent) relationship. A different division of some property may be used upon agreement of the couple or order of the court.

Can I keep living in the family home after separation?

Both spouses or common-law partners have the right to remain in the family home after separation, even if only one spouse owns or leases the home. The couple may reach an agreement about who will remain in the home post-separation. They may also both stay in the home but live separate lives (“separate and apart”).

How can I get exclusive possession of the family home?

If one spouse or common-law partner wishes to live in the family home alone after separation, they may apply to the court for an order of exclusive possession. The court will consider all of the family’s circumstances before granting such an order, including each spouse’s financial means, any pre-existing court orders about financial support or property division, and the best interests of the couple’s children. Spouses can also negotiate an arrangement where one of them remains in the family home.

Child Protection

A caseworker has asked to meet with me to discuss my children. Am I allowed to have someone present?

Yes. Most caseworkers will have at least one other person present when they meet with you. This may be a colleague or a team leader or even a Manager. Caseworkers are encouraged as part of their Signs of Safety Training to encourage parents to have support people present who can assist them in understanding what is being asked of them, what the concerns are and what steps they need to take during this challenging time.

The caseworker refuses to meet with me unless I meet them without a support person. Is this allowed?

The caseworker may request this. This does not mean you have to agree. In fact, you can ask for clarification from the caseworker about why they will not allow you to have a support person present.

The caseworker has attended at my child’s school to meet with my child without my knowledge. Is this allowed?

Yes. If a caseworker has concerns about your child and needs to do an investigation, they can arrange to meet with your child without you present. However, when arranging these meetings, the caseworker should be cognizant of your child’s interests and should arrange if possible for an interview to take place where the child is not embarrassed in front of peers or upset unnecessarily.

The caseworker appears to be taking notes when she/he meets with me. Why?

When a caseworker meets with you, they will take notes. These notes are kept on file as they form the caseworker’s record of their perception of what was discussed. You are rarely given the notes to review or check them for accuracy at the time. You can take your own notes of the meeting and provide them to the caseworker and ask that they are placed in their file as well. However, if you send the caseworker an email or fax or leave a voicemail, this also forms part of their file. This communication may be used in court on a later date.

Can I refuse to allow my child to be interviewed?

Yes. However, you should consider this step carefully as a caseworker may consider that your child is in danger and apply to apprehend your child as they cannot confirm the child’s safety.

Family Reproductive Services

Is it legal to pay for reproductive materials, such as sperm, eggs, or embryos in Canada?

No. Payment in exchange for reproductive materials is prohibited in Canada under the Assisted Human Reproduction Act. However, the donation of materials is legal. As a best practice, we recommend that all parties involved in the donation of reproductive materials enter into a comprehensive contract setting out each person’s duties and obligations before taking any concrete steps towards collecting or retrieving materials.

Is it legal to pay a surrogate for their services in Canada?

No. Under the Assisted Human Reproduction Act, paying a person for surrogacy services is prohibited. However, it is permissible to reimburse a surrogate for their reasonable expenses of the surrogacy. Before any steps are taken toward beginning a surrogacy, we advise each party to seek independent legal counsel and to enter into a comprehensive contract setting out each party’s rights and obligations under the agreement.

What types of expenses qualify for reimbursement for a donor or surrogate?

Donors and surrogates cannot earn a profit from donating reproductive material or carrying the pregnancy. Expenses that are reasonably connected to the donation or surrogacy may be reimbursed by the intended parents, however. The following are examples of reasonable expenses that may be reimbursed under Regulation SOR/2019-193:

Travel expenses, including accommodation and meals
Medical expenses
Fees for legal services
Maternity clothes
Prenatal care costs
Income loss due to unpaid time away from work
Communication costs, such as the cost of a cell phone

What is the difference between traditional surrogacy and gestational surrogacy?

In traditional surrogacy, the surrogate donates their eggs in addition to carrying the child. This solution is often used by parents who will require both donated eggs and a surrogate, in order to streamline the process.

In gestational surrogacy, the surrogate has no biological relation to the baby they will carry. The eggs will be retrieved from the intended parent, or an egg donor, and implanted into the surrogate. This is often the preferred choice when the intended parent has viable eggs but is unable to carry a pregnancy for one reason or another.

Each case is unique and can involve multiple people. No matter how you plan to proceed with surrogacy, we strongly recommend that each party obtain independent legal advice before taking any concrete steps. This way, the parties can enter into a comprehensive contract customized for their situation, in an effort to prevent future disputes.

In Alberta, who is the legal parent of a child born through surrogacy?

Alberta by default recognizes the person who birthed the child as a legal parent, but in the case of a surrogacy, the intended parents may file an application for a declaration of parentage. The following people can bring such an application:

The surrogate;
The person who provided reproductive material for the pregnancy, such as an egg or sperm;
The spouse (or adult interdependent partner) of the person who provided reproductive material where the other person who provided reproductive material is not an intended parent of the child.

In cases where neither intended parent provided reproductive material for the pregnancy, the intended parents will be required to apply to adopt the child, rather than request a declaration of parentage.

How many legal parents can a child have in Alberta?

Many families in Alberta are non-traditional, meaning there may be more people who consider themselves a parent to a child than the standard two. However, Alberta law still only permits a maximum of two people to be named as legal parents on a child’s birth certificate. However, courts in other provinces have begun to recognize a need for the law to evolve along with society’s definition of family, by ordering that more than two people be listed as legal parents on a birth certificate.

Traditionally, the law allows for the parent who gave birth to the child, as well as one co-parent (most often the biological father) to be listed. However, more families are taking to the courts to have their parental status recognized, including LGBTQIA2S+ families and those in polyamorous relationships.