INTENT

To enable Child Support Services (CSS) to make case management decisions when applicants have existing support arrangements.

POLICY

Unenforceable Agreements

When the applicant has an unenforceable agreement, an assessment is completed on both the applicant and the respondent to:

• Confirm if the amount is consistent with the Alberta Child Support Guidelines and Tables, and
  
• Confirm the payments are current.

The Child Support Worker (CSW):

• Asks the applicant how the amount of support was decided
  
• Confirms the amount of the unenforceable agreement is in accordance with the reasonable by referring to the Alberta Child Support Guidelines and Tables; and ensures the amount is appropriate by substantiating the respondent’s financial information according to the FLA.
  
• Determines the regularity of payments and the period of time the payments have been made
  
• Discusses the advantages for all parties if an CSS 0045 Support Agreement or a court order is obtained, e.g. the Maintenance Enforcement Program (MEP) can immediately enforce if payments stop, no future court hearings to obtain support are required. 
  
• Advises the applicant the department will formalize the unenforceable agreement if the agreement is not aligned with the Alberta Child Support Guidelines and Tables, or if the payment is not current.

Legally Enforceable Agreements/Orders  (Support Agreement/Court Order)

The CSW:

• Reviews any existing legally enforceable support agreement or order. If the agreement/order is written in a language other than English, has the document translated.
  
• Advises the applicant to notify the CSW within 2 days of initiating or receiving notice of any action to vary their own arrears for the time they were not in receipt of assistance. [CASS Regulation Section 3]
  
• Explains that the CSW may still intervene or pursue the respondent for ongoing support even if a concurrent action is in progress.
  
• Advises the applicant that they do not have the authority to vary ongoing support, however they may be able to defend ongoing support if they have a lawyer. Prior to giving consent, the CSW would consult with the department lawyer. [IESA Section 29(6)(a) and CASS Regulation Section 3]
  
• Explains to the applicant that they are not able to cancel or reduce support or arrears owing to the Crown. Any such agreement made would be void. [IESA Section 29(6)(c) and (7)]
  
• Determines if the applicant regularly receives full payments. If the applicant is receiving the full support on time and there are no arrears owing to the Crown, the worker does not need to register with MEP.

Divorce Order Silent Concerning Support

The CSW verifies that the divorce action is final, i.e. the decree absolute or divorce certificate has been granted.

A divorce order is silent when the divorce judgment or decree nisi and the certificate of divorce or decree absolute makes no mention of support.

The CSW initiates court action when:

• The divorce action is final, and 
  
• The divorce order is silent, and 
  
• An assessment indicates the respondent has the ability to pay support and 
  
• The respondent is not willing to negotiate and sign a CSS 0045 Support Agreement

Divorce Order Reserved Concerning Support

When the applicant is divorced with support reserved in the divorce, the CSW:

• Refers the matter to the department lawyer if the assessment indicates a notice of motion in Court of King’s Bench under the Divorce Act may be possible.
  
• If the department lawyer does not recommend to pursue the matter, and if the applicant wishes to pursue a notice of motion, refers the applicant to their own legal counsel or Legal Aid. 
  
  Note
  Legal Aid does not generally assist a client on assistance to initiate a notice of motion or to vary a divorce order. The exception may be an applicant in receipt of a small IS supplement and an increase in support would result in closure to the IS file.

Divorce Pending

If a divorce action has been initiated by either the applicant or the respondent, the applicant must notify the CSW within 2 days of filing or receiving notice. [CASS Regulation Section 3(1)] If a divorce hearing is pending in the Court of King’s Bench, it may be possible to apply for support under the Family Law Act in the Court of King’s Bench.