Support/Maintenance for Children and Spouses
When a couple decides to divorce or separate, and children are involved who are under 18 years of age (or over 18 but still dependent on the parents due to special needs or other reasons), the law requires that provision be made for their daily needs and requirements. Likewise, spouses may have an obligation to support each other in relation to certain necessities of life. Maintenance Orders may be obtained and enforced, even if the spouses live in different provinces.
Parents may arrive at an agreement between themselves as to how, and when, child support will be paid. Such an agreement, however, will ultimately be subject to the approval of the Court. As of May 1, 1997, Federal Child Support Guidelines were introduced which set out a fixed amount of child support/maintenance based upon the income of the parents involved. All applications to the Court for child support under the Divorce Act or Family Maintenance Act are governed by these Guidelines. Furthermore, special and extraordinary expenses of the children, such as health care, child care, education, or extracurricular activities may be additional to such basic child maintenance. In some cases, special provisions for the children may have already been made. For any Court order after May 1, 1997, child support is neither deductible to the payor nor included in income of the recipient for income tax purposes.
Separation or divorce can have serious financial implications for a spouse who may have no means of support. To help overcome the financial problems caused by separation or divorce, you may apply to the Court for spousal support/maintenance. The Court expects that both spouses will become self-supporting as soon as possible, relative to the circumstances of each spouse. There are no written guidelines in determining spousal support/maintenance; however, the Court will take into account such considerations as the length of the relationship, special needs, work histories, and whether or not you have children of the relationship. Spousal support/maintenance payments are taxable to the receiver and deductible to the payor.
Interim Maintenance Order
Between the time of the initial application and the Court’s final decision, the Court may order temporary child and/or spousal support/maintenance. This interim Order may be different from a final Order.
How Support/Maintenance is Paid
Child support/maintenance is paid directly to the spouse who has custody of the children, not to the children. Spousal support/maintenance is also usually paid directly to the spouse; however, it may also go to third parties, for example, to a bank to pay for a mortgage. Moreover, payments are usually set and made periodically, although lump sum payments are possible. Child support/maintenance may also be paid through the Maintenance Enforcement Office.
Changing a Maintenance Order
Because child support is based upon the tables outlined in the Federal Child Support Guidelines, a change in the circumstances of the parents may justify a change in child support/maintenance payments. As for spousal support/maintenance, an order may be changed if, for example, one spouse has lost his or her job, or has obtained a better paying, or worse paying, job.
Consulting your Lawyer
Your lawyer is a valuable source of advice if you are faced with the prospect of either requesting or paying child or spousal support/maintenance. Early consultation will assist you in negotiating the best possible agreement, and, if necessary, making application to the Court on your behalf.
By: Michael Weger - NSWB Law Firm
Published in The Saskatchewan Advocate,
March 2010 issue