Maintenance is money that one person pays to another person for support. Spousal maintenance is a payment one spouse pays to the other spouse. Child maintenance is a payment one parent pays to the other parent for the support of their child or children. Spousal maintenance may be available even if the parties are not legally married. A person may also be required to pay child maintenance for non-biological children in some cases.

Maintenance can either be paid in accordance with an agreement made between parties themselves, or by court order if no agreement can be reached. Generally adults are free to make agreements between themselves respecting maintenance that will not be interfered with by the Courts. Courts can make orders about maintenance, review maintenance agreements, and change existing orders or agreements. However, all agreements concerning child maintenance are subject to review by the Courts.

There are now guideline in place to set the amount of child support. These guidelines are based upon a paying parent’s gross income. In addition extra amount of support made me ordered on top of the guidelines amount in cases where there are extraordinary expenses for the child in areas such as health care, education, etc.

Guidelines concerning Spousal maintenance are being implemented. These guideline are more complex and involve a series of variable that must be accounted for in order to arrive at a range of entitlement. Issues related to Spousal maintenance are complex and should be discussed directly with a lawyer.

Social Services generally considers maintenance payments as income and may adjust benefits accordingly. If you are a recipient of benefits from Social Services and there is no maintenance order or agreement in effect when one may be appropriate for either Spousal maintenance or Child maintenance, Social Services may on their own application proceed with an application for maintenance against potential payors.

When a couple separate or divorce, either spouse can ask for maintenance. Spousal maintenance is intended to help a spouse overcome financial inequalities created by the marriage, separation, or divorce.

A common law spouse may be entitled to spousal support if they have:

• lived with the other partner for an appropriate period of time,

• had a relationship of some permanence and have a child, or

• signed an agreement concerning maintenance

Spouses can agree on any amount they like. If a court is asked to decide, the court will consider a number of factors. There is no set amount.

Determining the amount:

If the parties are unable to reach an agreement about spousal support, the court will consider:

• the respective needs and means of the parties

• the length of the relationship

• the role each spouse had in the relationship

• the effect the relationship or its breakdown has had on each spouse

• the ability of the spouse seeking support to become financially independent

• the legal duty of the supporting spouse to support another person

In awarding spousal maintenance, the court does not consider any misconduct of the spouses in relation to the marriage, such as adultery. The amount of spousal maintenance can be changed by agreement or court order. A court will consider changing the amount if a spouse’s needs, means or other circumstances change.

Duration:

Maintenance for a spouse is payable for as long as the spouses agree, or for any length of time that a court considers reasonable and so orders.

Sometimes a court will expect a spouse to be responsible for his or her own maintenance after a set amount of time. Other times, the court will not set any limit on the length of time that payments are to continue, for example, in the case of an older dependent spouse or a disabled spouse.

Both parents have an obligation to support their children. A custodial parent can apply for maintenance for children who are under their charge and under the age of eighteen.

A custodial parent may be able to get maintenance for a child who is over eighteen but still dependent because of illness, disability or other reason, such as full-time attendance at school.

The non-custodial parent is responsible for child maintenance even if they do not have visiting rights. Child maintenance is still payable even if the custodial parent remarries or lives with someone else.

Determining the Amount:

There are guidelines in place that set out a fixed amount of support for each child, depending on the paying parent’s income and the average cost of raising children.

The fixed amount can be raised if there are special expenses for the child, such as expenses related to health care or extracurricular activities. In some cases, the fixed amount can be lowered if paying that amount would cause undue hardship for the payor. The amount of child maintenance can be varied if these factors change.

In appropriate circumstances a person being asked to pay child maintenance may be able to make a claim for undue hardship to reduce or eliminate obligations that are almost always otherwise automatic. Such applications are narrow in their scope and should be discussed in advance with legal counsel.

Parents can reach their own agreement about child maintenance. The agreement does not have to be based on the guidelines, but a court could refuse to approve an agreement that was totally inadequate to meet the child’s needs.

Taxation:

A person paying maintenance payments under a written agreement or court order dated before May 1, 1997 can deduct the amount on his or her income tax return, and the person receiving the payments must include the amount in his or her income.

For written agreements or court orders dated after May 1, 1997, the person paying child maintenance can no longer claim this amount as a tax deduction, and is responsible for any related tax implications. The person receiving it will not include the amount as income.

The Court can order child or spousal maintenance to be paid during the time between the application for divorce and the point at which the court makes a final order. This is called an interim order. When the court makes a final order, it may make an order different from the interim order.

Anyone who has been ordered to pay maintenance or who is receiving maintenance because of a court order can apply to have the order changed. In the case of spousal support, the court can change a maintenance order if there has been a change in the means, needs or other circumstances of one of the spouses or of a child. For example, the court might change a maintenance order if the paying spouse lost his or her job, or if the spouse who was receiving maintenance now has a better paying job.

In the case of child support, the coming into force of the child support guidelines is a change of circumstances for pre-existing orders. Where a child support order is made based on the guidelines, any change of circumstances that would result in a difference child support order can justify a change. Child support orders that were not determined in accordance with the guidelines may be changed if there is a change in the means, needs or other circumstances of either spouse or of the child.

The Maintenance Enforcement Program (MEP) is set up to collect maintenance payments. The order or agreement must be registered with the MEP if it is to be enforced by them. Currently there are no fees for MEP services. The MEP can:

• garnishee paycheques, Employment Insurance payments, income tax refunds, pension cheques or bank accounts

• seize property and sell it to pay the support payments

• make the non-paying spouse attend court to explain the non-payment

• ask the court to send the non-paying spouse to jail in the most serious cases

• ask to have the non-paying parent’s driver’s licence suspended

A person receiving maintenance can sign a form stating that they do not want the payments to be enforced through the MEP. If you collect your own maintenance, you must pay any enforcement costs. You can also register an order with the MEP at a later date if you are having difficulty collecting maintenance payments.

An individual or the MEP can send a court order, or registered agreement, to another province to be enforced if the person paying maintenance moves to another province. If there is no order or agreement, a court application can be made either in Alberta or in the province where the other person lives.

There are many complicated issues surrounding maintenance entitlements and obligations. One of the knowledgeable lawyers at Dimnik & Company would be pleased to assist you, whether you are seeking to obtain maintenance from another person or another person is seeking to obtain maintenance from you.

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*Registered trade name of Michael J. Dimnik Prof. Corp