Monthly Archives: May 2015

The Basics of Support

family-hands

Whenever a client’s relationship breaks down, we consider whether child support and spousal support come into play. They are different things and different rules apply. Here are some quick facts about child and spousal support in Alberta.

  • Child support is automatic. Every child is entitled to support from his or her parents, at least up until the age of majority. Support is the right of the child, not the parent who receives payment.
  • Spousal support is not automatic. A spouse claiming support must first prove an entitlement to support.
    • In Bracklow v Bracklow ([1999] 1 S.C.R. 420), the Supreme Court of Canada set out 3 grounds for possible entitlement: compensatory, non-compensatory (“needs”) and contractual.
  • The Federal Child Support Guidelines set out the amounts payable in basic monthly child support in divorce cases and courts rarely allow deviations from the guideline amount. The Alberta Child Support Guidelines apply when the parents are not married.
  • The Spousal Support Advisory Guidelines set out a range of amounts payable in monthly support and courts routinely deviate from the suggested range because these guidelines are only advisory (not binding).
  • Adult Interdependent Partners (“Common law” spouses) may also have an obligation to support each other.
  • Basic monthly child support amounts in the Child Support Guidelines are determined by reference to the payor parent’s income (usually the amount on line 150 of the payor’s tax return), the number of children and the province where the payor parent resides.
  • Monthly spousal support amounts are calculated in the  Spousal Support Advisory Guidelines by comparing the two spouses’ disposable income, calculated “net” of any child support obligations.
  • There are two aspects to child support: basic support (also called “section 3 support”) and “special and extraordinary expenses” (also called “section 7 expenses”)
    • Basic support is generally meant to contribute to those everyday requirements of every child, such as food, shelter, clothing and schooling.
    • “Special and extraordinary expenses” are those expenses that are unique to the child, such as child care costs to allow a parent to go to work, or orthodontic braces or specialty education (this is an area of considerable debate). Parents typically share the expenses based on their respective incomes.
  • All aspects of spousal support can be negotiated between the spouses – entitlement, payment by lump sum or by installments, amount and duration of payments.
  • Child support is payable at least until the child reaches the age of majority. In certain circumstances (such as a child living at home to attend university classes full-time), child support is payable when the “child” is otherwise considered an adult.
  • Courts cannot take “spousal misconduct” into account when making an order for spousal support.

These are just the basics of support. If you need more information, we invite you to come in and see us.

 

Guess who’s in charge of the government in Alberta right now?

Jim Prentice rachel notley

Alberta’s provincial election was held on May 5, 2015. It resulted in the first change in the governing party in Alberta since 1971. The Progressive Conservative party, which had formed government for the last 44 years, was defeated by the Alberta New Democratic Party.

Currently, we are in an interesting situation from a legal perspective. As of the writing of this blog post on May 13, 2015, the new premier-designate, Rachel Notley, has not yet been sworn in. Neither have any members of her cabinet.

This raises the question: Who is in charge during the period between the election and the swearing in of Ms. Notley and her team?

You may be surprised to learn that the Premier is still Mr. Prentice, and his cabinet are all still in charge of their respective ministries. These people wll remain in these positions until the new Premier and her cabinet are sworn in.

This isn’t widely advertised, but the information is still out there. Here is a screen shot of today’s Alberta.ca website home page, still showing the smiling face of “Premier Jim Prentice”.

Alberta government home page snip
Similarly, the Speaker of the Legislature is still Gene Zwozdesky (who lost his seat as an MLA in the election); in fact, he is in charge of training the new MLAs about their legislative role.

Why is this? It has to do with the separation of powers between the branches of government, and the concept of continuity.

 

Separation of Powers

First, it is important to know that the work of government is separate from the work of the legislature. Alberta’s legislature is not in session all of the time. It convenes for sessions when it has business to do. For example, in 2014, the legislature was in session for 42 days.
This makes sense, since the legislature is responsible for proposing, debating, passing and amending laws and that is not really a full time job.

The job of governing according to those laws lies with the “executive” branch of the government. As the name suggests, these people “execute” (implement) the laws. This is done through a series of Ministries responsible for particular aspects of governance. Some examples in Alberta are: Finance, Health, Aboriginal Affairs, and so on.

Each Ministry is headed by a Minister, who functions as the chief executive of that Department, and a member of the Executive Council (better known by its informal title, the Provincial Cabinet). The head of the Cabinet (formally, the Chief of Executive Council) is known as the Premier. He (soon to be she) is therefore Chief Executive of the Province.

Continuity

The work of government doesn’t stop just because an election has occurred and new people have been elected (and others voted out). Services still need to be delivered, and people still need to be in charge of decision-making.

So, a Minister in charge of a Ministry remains in change until replaced by a new Minister being sworn in.  From time to time, a Minister may resign. In such a case, the Deputy Minister (a civil servant, not an elected politician) has day to day management until a new Minister is appointed.

Little known fact:  although Mr. Prentice resigned as the Progressive Conservative Party leader and he resigned his seat as MLA, he did not resign as Premier.

My final note is that this legal arrangement is not unique to Alberta. It is the same throughout all provincial legislatures and also federally.

So, now you know who is in charge