Can Parents Agree to No Child Support in Alberta?

Many separating parents get along well enough that they want to skip child support altogether. One parent may earn little, or the parents may split time evenly and decide that nobody should pay anyone.

It is a reasonable instinct, but child support works differently from most other things you can agree on. This article explains how the rules are set up in Alberta and why a clause waiving support may not give you the certainty you expect.

This article covers the law of Alberta.

Child support belongs to the child

When a court makes a child support order for a child under the age of majority, the amount is the applicable table amount plus any amount for special or extraordinary expenses under section 7 of the Federal Child Support Guidelines. The amount comes from the Guidelines rather than from what each parent would prefer. That idea sits behind the way the law is built.

On a child support application under the Divorce Act, the court must make the order in accordance with the applicable guidelines. There are exceptions. For example, the court may award a different amount if special provisions in an order or agreement directly or indirectly benefit a child and the guideline amount would be inequitable.

Which rules apply in Alberta

Divorcing spouses are under the Divorce Act, and the Federal Child Support Guidelines apply unless both spouses are habitually resident in a province designated by order. Unmarried, separated-but-not-divorced, and adult interdependent partners proceed under Alberta's Family Law Act and the Alberta Child Support Guidelines.

Judges must follow the Alberta guidelines in non-divorce cases, and those guidelines adopt the Federal Child Support Guidelines. Because they adopt the federal tables, the table amounts are the same either way.

Why a no-support clause may not settle things

Since a court applies the guidelines when it makes an order, a clause setting support at nothing does not automatically replace them. Whether a court would honour a particular clause depends on the facts, the wording of the agreement, and the child's circumstances. That is a question to put to a lawyer before you sign.

The law does give some room to depart from the usual amount. A court may award a different amount where special provisions in an order or agreement directly or indirectly benefit a child and the guideline amount would be inequitable. A court may also award a different amount if a spouse or child would otherwise suffer undue hardship, although the claim must be denied if the claiming spouse's household would have a higher standard of living than the other household.

Those are limited exceptions. They are not a general permission to skip support because both parents are comfortable with that.

Situations where the table amount may be low

Sometimes the guidelines themselves lead to a small amount or none. The tables note a threshold income below which no table child support is payable, stated as $12,000. Parents who share time may also see a different result. If each parent has at least 40% of parenting time with a child over the year, the court must consider each parent's table amount, the increased costs of shared arrangements, and each household's means and needs.

• A payer's income is below the threshold in the tables.
• Each parent has at least 40% of parenting time.
• Each parent has the majority of parenting time with different children, so the amount is the difference between the two table amounts.

In each of these cases the figure comes from applying the rules, not from the parents agreeing to waive them.

Enforcement and what to do next

An agreement also matters for enforcement. The Maintenance Enforcement Program (MEP) needs a filed maintenance order or maintenance agreement that sets an enforceable amount. It cannot enforce terms that are not in a court order or an eligible agreement, and that includes Minutes of Settlement and separation agreements.

• Find out what the guideline table amount would be for your situation before you decide to waive anything.
• Write down why you think no support is appropriate, such as shared time or low income.
• Ask a lawyer whether your clause would likely be honoured, and what could be done if circumstances change.
• If support will be paid, consider getting terms into a court order so MEP can enforce them.

Frequently asked questions