There has been a Notice to the Profession & Public issued, regarding what is a fairly significant change to the process for filing a child support application in the Court of Queen’s Bench (“QB”).
Up until now, a party seeking to file an application in QB for a child support order could simply file that application. The filing of a separate form and court application, namely a Notice to Disclose Application, was required in order to trigger certain financial disclosure obligations set out in:
- Section 21 of the Alberta Child Support Guidelines, applicable to Family Law Actclaims; and
- Sections 21-24 of the Federal Child Support Guidelines, for applications pursuant to the Divorce Act(Canada).
Effective May 1st (with a grace period being observed until June 1st), the requirements of the applicable Guidelines will be strictly enforced. This means that any party who wishes to file for a child support order (including an order to vary a current support order), and whose income is necessary to determine the amount of support owed (whether section 3 support, or the sharing of section 7 expenses) must include in their Claim/Family Application the information set out in the applicable Child Support Guidelines.
Specifically, the following information must be included and filed along with the court application and supporting Affidavit:
- A copy of every personal income tax return filed by the party for each of the three (3) most recent taxation years;
- A copy of every notice of assessment and reassessment issued to the party for each of the three (3) most recent taxation years;
- If the party is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the party’s employer setting out that information including the party’s rate of annual salary or remuneration;
- Where the party is self-employed, for the three (3) most recent taxation years:
- The financial statements of the party’s business or professional practice, other than a partnership, and
- A statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the party does not deal at arm’s length;
- Where the party is a partner in a partnership, confirmation of the party’s income and draw from, and capital in, the partnership for its three most recent taxation years;
- Where the party controls a corporation (or has an interest of 1% or more in a privately held corporation), for that corporation’s three (3) most recent taxation years:
- The financial statements of the corporation and its subsidiaries, and
- A statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length.
- Where the party is a beneficiary under a trust, a copy of the trust settlement agreement or copies of the trust’s three (3) most recent financial statements; and
- In addition to any income information that must be included under the previous paragraphs, where the party receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicale source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information.
Both sets of Guidelines require the above information, and the Alberta Child Support Guidelines also includes:
- If the party is a student, a statement indicating the total amount of student funding received during the current academic year, including loans, grants, bursaries, scholarships and living allowances.
Similarly, a party served with an application for a child support order (i.e. Respondent), and whose income is necessary to determine the amount of support to be included in the order, must provide the Court and the other party with the same financial documents (ordinarily, within 30 days of being served if the party resides in Canada or the USA and within 60 days if residing outside of Canada/US). A Respondent to an application for child support will not be permitted to file a reply Affidavit or Cross-Application unless he/she has provided the above information to the Court. If the Respondent fails to disclose, the court application may proceed and income may be imputed to that party for child support purposes, in accordance with the Guidelines. That party will not be able to apply to vary the child support ordered using an imputed income for him/her unless and until that party’s financial disclosure set out herein is complete, and may be subject to a costs award.
Only in rare occasions may leave of the Court be sought and given to file an application or response to same, without also providing the listed financial disclosure items. The only child support application this new requirement does not apply to, is an application for a stay of enforcement regarding child support arrears.
This represents a significant change to practice with respect to child support applications. Clients and potential clients who wish to bring a court application regarding child support are best advised to turn their minds to compiling all of the above (applicable) financial disclosure items sooner, rather than later, in order to avoid any subsequent delay in having their matter determined by the Court.