Can You Stop Paying Child Support if Parenting Time Is Denied in Alberta?

Being kept from your child is painful, and it is natural to feel that paying support is unfair when you are not getting your time. Many parents ask whether they can hold back payments until the other parent follows the parenting order.

In Alberta, the safer path is to use the court process for each problem. This article explains what happens to a support order when you stop paying, how to enforce parenting time, and when it makes sense to ask the court to change an order. It is general information, not advice for your situation.

This article covers the law of Alberta.

Why stopping payments on your own is risky

A support order can be changed through the court. On application, the court may vary, suspend or terminate a support order or any part of it. Deciding to stop paying, even out of frustration, is not the same as asking the court for a change, and when a change takes effect depends on your situation, so it is worth confirming with a lawyer.

If the order has been filed with the Maintenance Enforcement Program, that does not stop you from asking for a change. The court may still make a change even though the order has been filed. What matters is that you ask the court first, instead of acting alone.

Whether denied parenting time affects your support obligation in your particular case depends on the facts and the wording of your orders. A lawyer can confirm this before you stop paying anything.

Enforcing your parenting time

Alberta's Family Law Act has a specific tool for denied time. A parenting-time enforcement order requires the court to be satisfied that time was denied within 12 months of the application being brought. If the court makes an order, it can set a penalty of up to $100 for each day of denial of time, and imprisonment (continuous or intermittent) up to a maximum of 90 days.

To start, you file the Claim – Family Law Act and the Statement – Enforcement of Time with a Child, with a copy of the parenting-time order, at the court that granted it. The penalties apply only if you apply to the court.

The court can also direct police to help enforce a visit, or to find and return a child who was not returned. Where an enforcement order has a police-assistance provision, an enforcement officer must assist you on request and on production of a certified copy of the order. There is an exception: the officer need not bring the child to you if the officer decides, in the immediate circumstances, that it is not in the child's best interests.

Contempt of court as another route

If the other parent is ignoring a court order, a civil contempt application may be possible. A judge may declare civil contempt where a person, without reasonable excuse, does something listed in the rules, such as not complying with an order. You serve a notice of application in Form 27 on the person like a commencement document, though service is not required in listed situations where the person is already before the Court.

The penalties can be serious. They include imprisonment until the contempt is purged, imprisonment for up to 2 years, or a fine, and for a party the Court may also strike pleadings, stay or dismiss a claim, or bar evidence. If the person purges the contempt, the Court may waive or suspend any penalty.

Contempt is a heavy step and can be more complicated than a parenting-time enforcement application. A lawyer can help you decide which fits your situation.

Changing the orders instead of withholding money

If the real issue is that the parenting arrangement no longer works, you can ask to change it. Under the Divorce Act, either or both former spouses can apply to vary a parenting order. Under the Alberta Family Law Act, the court may vary, suspend or terminate a parenting order or any part of it.

You must show a change. Before varying a parenting order under the Divorce Act, the court must be satisfied that there has been a change in the circumstances of the child since the order was made. Under the Family Law Act, it must be satisfied that a change in the needs or circumstances of the child has occurred.

If you think the support amount should change, you apply to vary that order too. The tests differ by law and by type of support:

Alberta.ca lists examples that may lead a court to consider changing child support, such as a long-term change in employment income, the number of dependent children, and travel or access costs. The payor applies for a decrease.

What to do next

• Ask the court for a change before you stop or reduce payments.
• Write down each date time was denied, with messages or other records.
• Get a copy of your parenting order and your support order.
• Gather your documents, such as your orders and proof of income.
• If the other party will not agree to change a consent order, a court application is needed.
• Check whether you must follow the Family Justice Strategy first, which may apply in Greater Edmonton, Calgary, Red Deer or Grande Prairie.
• Confirm with a lawyer which application suits your situation.

The forms depend on your situation. If the parents were not married or in a common-law relationship, or no divorce was started, a payor who wants to change child support files Claim (Family Law Act) CTS3459, Affidavit of Service – Applicant CTS3513 and Payor's Statement – Vary Child Support CTS3471. If the parents are divorced or a divorce was started, either parent uses the Court of King's Bench Application to Change Child Support and Arrears plus the Disclosure Statement (RCA11252). If you do not attend, the judge may make an order in your absence.

Frequently asked questions