Are you separating or divorcing?

Are there children in your relationship?

Are you a single parent?

Do you now pay or receive support?

This pamphlet will explain the law about spousal support (alimony) and child support. Together they are often called family support. There is a third type of support that will not be discussed here - support of a parent by an adult child. Support is sometimes called maintenance.

ABOUT SPOUSAL SUPPORT
Spousal support is the money paid by one spouse to the other. You have a right to claim spousal support if you were legally married or if you were in a common law relationship lasting three years or more.
The law says that you must try to support yourself after a separation or divorce if you can. But, if one of you is unable to support yourself, a claim for spousal support may be made. For example: 

• while you retrain
• while you find a job
• while you stay home to care for young children
• if you were damaged by the relationship (as in some abuse situations)
• if you are disabled and cannot work
• if you are too old to retrain for work

• how long have the spouses lived together
• what was each spouse's contribution to the marriage
• will one spouse suffer financial hardship because of the marriage breakdown
• If your circumstances make it unreasonable to expect you to become self-supporting, you may be able to get permanent support.

• you need it; 
• the judge rules that you must be compensated for your contribution to the marriage;
• the other person can pay it; and
• after child support is considered. 

What happens at income tax time?
At income tax time, spousal support can be deducted from the income of the person who pays it and must be added to the income of the person who  receives it. 

If you have an order that includes both child and spousal support, child support takes priority. This means that a paying parent will not get a deduction for spousal support until child support under the Guidelines is fully paid. 

Family support orders usually state  how much is for spousal support and how much is for child support. If your support order does not specify this, and you are under the new tax rules, it is assumed that everything you pay is child support.

How do you get spousal support?
There are two ways to get spousal support:

1.  If  both of you can agree on the amount to be paid and the conditions, a written    agreement can be reached and signed out-of-court. 

Out-of-court settlements can be done through mediation, in which you meet in face-to-face discussions with your spouse. With the help of a neutral mediator, you negotiate to reach an agreement that is acceptable to both of you. If mediation works, it can save time and money, create less stress for the family, and keep your dispute more private than going to court. It allows you to create your own solutions. Mediation can help you work out an agreement that keeps everyone's best interests in mind, and is particularly beneficial if you have children to be considered.

To be legally binding, your agreement must be signed by both of you and witnessed. You may want to have a lawyer check your agreement to make sure it is correct and complete. If your spouse's lawyer wrote the agreement, you should have your own lawyer look at it before you sign it. A signed agreement for support is a binding contract. You may register your agreement with the Maintenance Enforcement office. If payments are not made according to the schedule, the Maintenance Enforcement office will enforce your agreement.

2. You can make an application to have a hearing in Family Court.
It is a good idea to get help from a lawyer if you are going to court to be sure that your interests are being looked after. Any agreement should be carefully looked at before you sign it. A signed agreement for support is a binding contract.

The P.E.I. Family Law Act states that you must make a claim for spousal support within two years from the date you separate. 
If your claim is part of a divorce application, your case falls under the Divorce Act. This act  allows you to reapply for spousal support or to apply for a variation of your spousal support if:

• your first application for spousal support was denied or reduced in favor of child    support, and 
• your child support is now reduced or stopped.

Can I change spousal support?
Yes. You can change an agreement or order if you both agree to the changes and put those changes in writing.

If you can't agree, you or your spouse can apply to Family Court for a change or variation to this agreement. For a variation to be granted, a significant change must have occurred in your or your spouse's financial situation or you must be re-applying under the Divorce Act because your spousal support was denied or reduced in favor of child support. 

If you are not divorced, at least six months must have passed since your last agreement or order was made. If you are divorced, the six month time restriction does not apply.
 

ABOUT CHILD SUPPORT
The law says that both parents must contribute to the cost of raising their children. This is true whether you were married, lived common-law, or have never lived together. This financial contribution is called child support. You cannot bargain away this responsibility. 

Persons who stood in place of (acted as) parents may also be eligible for, or required to pay, child support - for example, a person who was a step-parent to a child.

There  are child support rules, known as Child Support Guidelines, that must be used by the judge to decide who pays support to whom, how much must be paid, when, and for how long.

When can I get a child support order or agreement?
Support orders or agreements for child support can be obtained at any time, although it is most common when a relationship first breaks down. Support  can be determined on its own or it can be in combination with other issues (such as custody, access, and property division) as part of your separation agreement or divorce order. 

What  circumstances affect the amount of child support I must pay or will receive?
The Child Support Guidelines should be looked at carefully in any out-of-court agreement. If you go to court, the Guidelines must be used by the judge to determine the amount of child support. There are three types of custody arrangements defined in the Guidelines that affect the amount of child support you will pay or receive. These definitions are used for determining the amount of support only, and do not change the arrangements for joint?decision making written in your separation agreement or divorce order.  The Guidelines define custody as follows: 

1. Sole Custody - one parent has physical custody most of the time
2. Split Custody - each parent has one or more of the children living with them
3. Shared Custody - each parent exercises (uses) a right of access to, or has physical   custody of, the child at  least 40% of the time. 

There is a basic amount of child support that comes from the tables in the Child Support Guidelines. This amount may be adjusted because of your circumstances. Some of the factors that may affect the amount you pay or receive are:

• your custody arrangements (according to Guidelines definitions)
• children over 18 who are receiving post-secondary education
• special expenses like medical or orthodontic costs
• children in extracurricular activities that involve extraordinary expenses
• childcare expenses to enable you to work
• income over $150,000 per year for the non?custodial parent
• undue hardship 

How do I get a child support order or agreement?
There are two ways to get a child support order or agreement:
1. If  both parents can agree on the amount to be paid and the conditions, a written   agreement can be reached and signed out-of-court. To be legal, the agreement must be   signed by both of you and witnessed. It is a good idea for each parent to have independent  legal advice and to have your lawyer review the agreement to make sure it is correct and   complete.

Mediation can also be used in this process, if reaching an agreement is difficult but you   would prefer to settle out-of-court. Mediators may ask that a lawyer write the mediated   agreement.

2. If you can't agree, you can apply to Family Court for a support order. 

Sometimes the judge deals with support as part of another court action, such as a divorce.   Your divorce order then includes the terms of your support order too. 

Whatever way you choose to arrange for support, it is a good idea to have a lawyer or mediator help you. The Child Support Guidelines office can give you information on the Child Support Guidelines and the court process, but cannot give you legal advice. It is best to ensure that everyone's interests have been considered and that the children are provided for properly. 

Can a child support order be changed? How?
Either parent can apply for a change, or variation, to their support order. You do not need the agreement of the other parent to do this. If you are not divorced, six months must have passed since your last agreement or order was made. Some exceptions are made to this - for example, if you have suddenly and unexpectedly lost your income and cannot pay support, you may be allowed to apply for a variation before the six months has passed. This is to prevent your unpaid support (arrears) from accumulating or adding up. If you are divorced, this six month time restriction does not apply.

There are three grounds for applying for a variation of your child support. These are:
1. There has been a "material change in circumstances" (this means a major financial   change).
2. You wish to have your order or agreement looked at according to the Child Support    Guidelines 
3. You wish to have your order or agreement looked at according to the new tax rules.
There are forms that must be completed and a series of steps that must be followed when applying for a variation. It can be done without a lawyer, though consulting a lawyer is a good idea.

Information on how to apply for a support order or a variation and copies of the forms required can be obtained from Community Legal Information Association (892-0853 or 1-800-240-9798) or from the Child Support Guidelines offices  in Charlottetown (368-6220) or Summerside (888-8188).

** It is important to know that being granted a variation may change the way your child support is taxed.
 

What if the parent paying support doesn't pay?
If the parent is not paying support as stated in the order or agreement, you can either see a lawyer or ask the provincial Maintenance Enforcement Program for help. Maintenance Enforcement  is a free service but you must register with the program to use it. You can reach this program at the Charlottetown courthouse. You can use this service even if your spouse lives or works in another province or country, or if your support order or agreement was written in another province.

Maintenance Enforcement can attempt to collect unpaid support by:

• garnisheeing (taking) a portion of the payor's wages
• asking the federal government to apply some or all of the payor's income tax refund to   unpaid support
• suspending the payor's driver's license 
• asking the federal government to suspend the payor's passport 
• asking the federal government to suspend certain other licenses, such as commercial   seaman's licenses or aviation licenses
• taking the payor to court for a default hearing

The Maintenance Enforcement Program will take steps to enforce your order or agreement - however, they cannot guarantee success in collecting the payments.

If you are the paying parent and have a legitimate reason for not being able to pay, such as losing your job, it is important that you apply for a variation of your support order. If  Maintenance Enforcement takes you to court for default (not paying), the judge will usually follow the original or last support order or agreement unless you have applied for a variation. 

What happens if the parent receiving or paying support is on social assistance?
If you are the paying parent and receiving social assistance, you can apply to the court for a variation of your support order so payments can be varied or lowered until you are working again. 

If you don't yet have a support order, but will be the receiving parent and are also receiving social assistance, you can contact your caseworker and request a referral to the Family Support Orders Program at the Department of Health and Social Services. They will help you get a support order in place.

If you are the receiving parent, with a support order or agreement in place, and are also receiving social assistance, there are several things you need to know: 

• the Department of Health and Social Services must be informed of any support payments  you are receiving. 
• if you receive a notice that the other parent has applied to vary your child support, you   must notify your caseworker.
• the Department of Health and Social Services will provide someone to represent you in   court. 
• the Department of Health and Social Services has a right to be represented at the hearing. 
• a support order may be overturned or cancelled if you agree to accept a lower amount   than is listed in the guidelines tables. 
• you can have your support payments paid directly to the Department of Health and   Social Services through Maintenance Enforcement. This is called assigning your payments.  You continue to receive your regular assistance amount from the Department of Health   and Social Services. If you are concerned that the support might be late or not paid, it may  be a good idea to assign your support. 

What happens at income tax time?
Changes were made to the Income Tax Act when the Child Support Guidelines became law. Child support awarded since the Guidelines came into effect on May 1, 1997, can no longer be claimed as a deduction by the person paying it and it does not have to be declared as income by the person receiving it. Orders that were made under the old tax laws will continue to be taxed as in the past, unless a variation is granted. If your support order was issued before May 1, 1997, you probably come under the old tax laws. However, if both parents sign a Revenue Canada Form T1157 (Election for Child Support Payments), the new tax rules will apply on the date specified by you on the form. You will continue to receive the same amount of support as stated in your support order or agreement.

It is a good idea to consult an accountant or a lawyer before you change your arrangements to see if the changes will benefit you.

What is mediation and can it help?
Mediation is a process you and your spouse may be able to use to develop your own solutions to issues. In mediation, you meet in face-to-face discussions with your spouse and a neutral mediator. Together, you  negotiate to reach an agreement that is acceptable to both of you.
If mediation works, it can save time and money, create less family stress, and keep your dispute more private than going to court.

Private mediators will mediate whatever is necessary for you to reach an agreement. There is a fee for their services. Mediators may be available through Family Court to help you work out an agreement, but they generally mediate only custody and access issues concerning your children. 

Where  can I get more information?
If you need legal information call Community Legal Information Association of P.E.I. at 892-0853 or 1-800-240-9798.

If you need tax information, call Revenue Canada at 1-800-959-8281 or the local Revenue Canada office at 628-4200.

You can get  more information about the Child Support Guidelines and how they might affect you  from the Child Support Guidelines Offices  in Charlottetown (368-6220) and Summerside (888-8188). 

You can find out more about mediation by calling Family Court Services at 368-6056 (6057), or Mediation P.E.I. at  892-7667, or the Conflict Resolution Co-op of P.E.I. at 368-7337.  You can also check the yellow pages of  the telephone book under Mediation Services. 

If you need to talk to a lawyer, you can phone the Lawyer Referral Service at 566-1666. A 30 minute appointment with a lawyer will cost $10. + taxes. Further time with a lawyer will be at the usual rate.
 
 

This pamphlet has been developed by Community Legal Information Association, as part of a Child Support Guidelines Information Project, in cooperation with the Department of Justice Canada Child Support Team, and the P.E.I. Department of Community Affairs and Attorney General.

Material was reviewed and edited by the Child Support Guidelines offices, by other professionals working with the courts and the Guidelines, by the CLIA Publications Committee, and by many community volunteers.

This pamphlet provides general legal information only. It does not contain a complete statement of the law in this area and is not intended to replace legal advice. Changes in law and policy occur frequently, so readers should check with a lawyer or CLIA (1-800-240-9798 or 892-0853) for up-to-date information. If you want or need legal advice, you should contact a lawyer. If you don't know a lawyer, call the Lawyer Referral Service at 566-1666. A half-hour appointment with a lawyer through this service will cost you $10. plus tax.

Funding
CLIA is funded by Justice Canada,  the government of Prince Edward Island, and the Law Foundation of Prince Edward  Island. Funding for this project was provided by the Department of Justice Canada, Child Support Team.