Child Support Services Policy

Published Date: August 05, 2016
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04 Court

Varying - Agreements and Orders

Alberta Child Support Guidelines and Tables
CASS Regulation Section 3
Family Law Act Section 46 and Section 77
IESA Section 29

INTENT

To ensure child support arrangements reflect changes in circumstances in accordance with the Alberta Child Support Guidelines (ACSG).

POLICY

Introduction

Effective January 2010, the Recalculation Program (RP) through Alberta Justice provides an administrative review of a child support agreement or order on an annual basis for eligible agreements/orders. An eligible agreement/order means an order obtained without imputed income or judicial discretion in the determination of the respondent's guideline income. This service can be accessed by either the applicant or the respondent and may result in the amount of the agreement/order being increased or decreased according to the parties' current income tax. The RP only deals with on-going support and makes no changes to any arrears. The RP is not a variation of the existing order. The CSW can refer the applicant to this service which may replace the need for a variation application.

Support agreements or support orders can be varied upwards or downwards. Child Support Services (CSS) makes or defends applications to vary only for assistance clients. [IESA Section 29(3)(e)] CSS initiates applications to vary upwards and may defend applications initiated by the respondent to vary the on-going support downwards.

A CSS 0045 Support Agreement can be used to vary a previous CSS 0045 Support Agreement, or a previous EMP 45 Maintenance Agreement under the Parentage and Maintenance Act (PMA), or a Maintenance Enforcement Agreement.

An existing Court Order must be varied by another Court Order. An application to vary under the Family Law Act (FLA) is used to vary a support order made under the Domestic Relations Act (DRA), the PMA, or the FLA.

Note
Variations of orders occur in an equal or higher court. Although, Family Court Orders including those filed for enforcement by MEP in the Court of Queen’s Bench may be varied in Provincial Court, CSS applications to vary are initiated in the Court of Queen’s Bench. CSS may be involved in responding to applications made by the respondent in Provincial Court.

In certain circumstances, a support order dated after May 1, 1997, may be reduced for enforcement through MEP when a dependant is no longer on assistance. This is not a variation of the order.

Change of Circumstances

All variation applications require that a significant change has occurred since the order or agreement to be varied was made. The FLA states the court must be satisfied:

  • A change of circumstances, including those provided for in the prescribed guidelines, has occurred since the making of the order or the last variation order made in respect of that order, or
  • Evidence of a substantial nature that was not available at the previous hearing has become available.

The coming into force of the Family Law Act and the Alberta Child Support Guidelines is a change of circumstance for orders made before October 1, 2005 under provincial legislation. [FLA Section 77(4), Alberta Child Support Guidelines Section 14]

The Child Support Worker (CSW) may initiate action to increase the amount of support when it is determined a substantial change has occurred in:

  • The respondent’s ability to pay a higher rate of support according to the respondent’s Guideline Table income or
  • The needs of the dependant, or
  • The income of the applicant when there are Section 7 expenses as part of the order or
  • There is an additional dependant from the same two parents.

When a substantial change in circumstances has occurred and the respondent has the ability to pay an increase in support, the CSW first attempts to negotiate a new CSS 0045 Support Agreement when one already exists, or initiates court action.

Application to Vary Upwards

Application to Vary an FLA Order

In order to determine if a change has occurred that substantiates an application to vary upwards, the CSW either:

  • completes the assessment interview with the applicant or
  • may complete a screening assessment by phone with the applicant on a re-opened file and book the applicant assessment interview after the decision to proceed with the variation is made.

The CSW:

  • Determines whether the applicant's agreement/order is appropriate for the RP taking into consideration: the date of the order which determines when the annual recalculation will occur, if the agreement/order is eligible for recalculation, the applicant's ability to cover the fee and whether operational considerations allow the CSW to complete a variation.
  • Reviews the amount of support in the existing agreement or order with the applicant.
  • Asks the applicant regarding the current needs of each dependant. The worker documents each need under the Alberta Child Support Guidelines and Tables that requires increased expenditure and records the amount of the higher expenses.
  • Obtains information from the applicant when possible, about the respondent’s income, assets and financial situation.
  • Asks the applicant if a greater amount of support has been discussed with the respondent and the respondent’s reaction.

When it has been determined a substantial change in circumstances has occurred the CSW may request an increase in support.

Support Agreement

In situations where support was initially arranged by a CSS 0045 Support Agreement or an EMP 45 Maintenance Agreement, or a MEP agreement, the CSW may contact the respondent to negotiate a new agreement. This document is forwarded to MEP for registration at Court of Queen’s Bench. The CSW ensures copies of the CSS 0045 Support Agreement are forwarded to the applicant and respondent.

Note
The CSW provides the respondent with the applicant’s financial disclosure prior to signing an agreement.

When no agreement can be reached to sign a new support agreement, the CSW initiates a court application to obtain an initial court order.

Court Order

An existing Court Order must be varied by another Court Order. The CSW proceeds in these situations only when the applicant is an assistance recipient.

The variation application must be initiated:

  • Prior to the death of the respondent
  • Prior to the eighteenth birthday of the dependant or prior to the twenty-second birthday of the dependant if the dependant is attending school full time [FLA Section 46]

Application to Vary a Divorce Order

An application to vary an order under the Divorce Act is made in the Court of Queen’s Bench.

The CSW usually does not initiate an application to vary these orders as the Justice Department does not routinely provide legal representation for the applicant or the department. If variance seems possible in a particular case because:

  • The original order was not calculated using the Federal Child Support Guidelines, or
  • The support award was of a nominal amount, i.e. $1.00, or
  • The special needs of the applicant and/or dependant have changed, or
  • The income and assets of the respondent have increased, or
  • The income of the applicant has decreased

the worker refers the matter to Alberta Justice Social Enhancement Legal Team for an assessment and recommendation.

Note
When it has been determined there has been a substantial change in circumstances as indicated above and the respondent has an ability to pay more, the CSW may attempt to with the respondent to increase the amount of support. The increased amount in excess of the original order is not enforceable. This would be considered an
unenforceable agreement. This is the only circumstance where a CSW would negotiate an unenforceable agreement.

Application to Vary Downwards

The respondent is responsible for making an application to vary downwards, not the CSW.

In this section, “creditor” means applicant and “debtor” means respondent.

Note
Timelines to obtain the required information may be short usually 1 to 5 days. Action on these referrals is a priority for the CSW.

Notification to CSS of Respondent’s Application

If a debtor initiates an application to vary an order for ongoing support downwards, the Department of Justice may oppose this application when the creditor is receiving assistance, if requested by the CSW.

When preparing the matter for court, the CSW:

  1. Requests the creditor provide the following documents or information at the interview:

    • Record of Section 7 expenses for each dependant and a copy of the receipts for each applicable expense.
    • Creditor’s last three pay stubs if applicable.
    • Creditor’s Income Tax Returns or Notice of Assessment for the previous three years. If the creditor cannot provide income tax return information, they complete the CSS 0338 Consent for Release of Confidential Information authorizing Canada Revenue Agency to provide this information directly to the CSW.
    • Information concerning the debtor’s income, assets and debts.
    • Record of any direct payments of support the creditor has received from the debtor since the date of the support order.
    • Record of where the children, who are the subject of the support order, have resided since the date of the support order.
    • Any other information relevant to the variation application in response to the respondent's affidavit.

  2. Advises the creditor that the department lawyer is representing the government. The creditor has the right to retain their own legal counsel to oppose the application but only for the applicant’s own arrears unless the applicant receives consent from the Director. [IESA Section 29(6)(a)] [CASS Regulation Section 3(1)(b)] [CASS Regulation Section 3(2)]

  3. May give consent for the creditor to defend an application to vary ongoing support, only after consultation with the department lawyer, if the creditor:

    • is on assistance and
    • is defending ongoing arrears and
    • has a lawyer.

  4. If the CSW is aware the creditor’s lawyer is not proceeding in a manner appropriate to protect the Director’s interest, can request the department lawyer to intervene and if necessary withdraw the consent. [CASS Regulation Section 3(4)]

  5. Contacts the financial worker and recommends assistance benefits be held pending further direction from the CSW if the creditor does not attend the interview or is not willing to provide the required information.

Applications with DNA Results

The CSW refers to Alberta Justice Social Enhancement Legal Team, not their Legal Agent, any matter when the respondent is disputing parentage after an agreement or court order is obtained. Alberta Justice Social Enhancement Legal Team co-ordinates these responses and subsequent actions.

In all cases, where the respondent is found not to be the father, and MEP is endorsing the request, CSS consents to the Crown claim for arrears being waived by MEP. When the respondent is requesting reimbursement for support payments already made, MEP is responsible to defend these actions and the CSW may be contacted for additional information.

When an order is dismissed in these circumstances and the applicant is receiving assistance, the CSW contacts the applicant to complete another assessment of the circumstances to ascertain another possible father to pursue for child support.

Application to Vary Agreement or Order under the Maintenance and Recovery Act

A maintenance agreement or order obtained under the Maintenance and Recovery Act terminates when the applicant marries if the order says so. Even though a Charter of Rights and Freedoms Court challenge deemed this provision unconstitutional, the authority of the order continues. An unappealed order or agreement is final and binding on all parties to which it applies until it is set aside by a court decision.

In order to vary the agreement or order to remove the provision that specifically terminates maintenance when the applicant marries, the CSW refers to the department lawyer for assistance with the correct process required for these applications.

A Maintenance Agreement or Order obtained under the Parentage and Maintenance Act or a Support Order or Agreement obtained under the FLA does not terminate when the applicant legally marries so no variation is required and the order can be registered at MEP.