Published Date: June 15, 2009
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Agreements, Orders and Child Support Income/Payments
Family Law Act Part 1 Section 8
IESA Part 5 Section 29
To ensure child support agreements can be enforced by formalizing unenforceable agreements.
An unenforceable agreement means that a respondent has voluntarily consented to pay child support. The agreement can be:
- A verbal arrangement or written agreement between the applicant and the respondent, or
- The arrangement is NOT contained within a written legal agreement or court order, and
- The arrangement CANNOT be registered and/or enforced with MEP
A legally enforceable agreement/order means that a respondent has either voluntarily consented by agreement (i.e. CSS 0045 Support Agreement or Maintenance Enforcement Agreement, etc.), or has been directed by the courts to pay child support by means of a court order. The written agreement or court order is a legal document which can be registered and/or enforced by MEP.
Child Support Income
For the purposes of the IS and CSS programs, child and adult support income is defined by its source (i.e. payment by the other parent, an estate, Maintenance Enforcement Program or the courts) and the reason it is received (for the care of a child or adult) rather than the method of payment (e.g. cash, cheque, money order, goods, services or other valuables).
Child and adult support income can be paid pursuant to a legally enforceable agreement or order or an unenforceable agreement.
The CSW formalizes the unenforceable agreement between parties by facilitating a CSS 0045 Support Agreement, or by pursuing a court order. An exception may occur when:
- A pre-existing unenforceable agreement has been in effect for 6 months, and
- Payments of the pre-existing unenforceable agreement have been regular and in compliance with the terms of the agreement for a minimum of 6 months, and
- Payments of the unenforceable agreement are in accordance with the Alberta Child Support Guidelines and Tables, and
- The applicant is in agreement with the pre-existing unenforceable agreement.
Unenforceable Agreements (Verbal Arrangement Format)
When an unenforceable agreement between the two parties exists, the CSW conducts a respondent assessment interview to confirm the appropriateness of the unenforceable agreement. The CSW:
- Ensures a copy of a signed, picture ID of the respondent is placed on file when required to confirm identity.
- Obtains copies of the respondent’s financial information as required under the FLA.
- Discloses the applicant’s financial information if there are Section 7 expenses.
- Negotiates or confirms ongoing support that is acceptable to the department and is in accordance with the Alberta Child Support Guidelines and Tables.
- If the respondent is cooperative, the CSW completes a CSS 0045 Support Agreement to formalize the voluntary support.
Occasionally, the respondent’s lawyer will request to negotiate a Consent Order.
- If payments have been regular in the past, the CSW confirms that payments will continue directly to the applicant, thus reducing the amount of assistance paid to the applicant.
- Advises the applicant the terms of the CSS 0045 Support Agreement are negotiated to meet department expectations and are in accordance with the Alberta Child Support Guidelines and Tables.
Advantages to negotiating an unenforceable agreement or Consent Order in the office over applying to the courts are:
- It is less intrusive into the affairs of a family
- It allows the applicant and respondent direct input into decisions concerning their financial obligations and responsibilities
- Due to the involvement of both parties, there is a greater compliance rate for payment
- Costly and lengthy court applications are avoided
- The result is a direct assistance cost offset if the payments are made directly to the applicant.
Occasionally, the respondent’s lawyer will request to negotiate a Consent Order.
If the respondent questions the tax implications concerning a support agreement made after May 1997, the CSW advises the respondent that support payments are tax neutral. The applicant does not pay tax on support money received. The respondent cannot claim an income tax deduction for support paid.
If the unenforceable agreement in the verbal arrangement is not kept, or if the respondent is un-cooperative in signing a CSS 0045 Support Agreement or Consent Order, the CSW reviews the circumstances, and if applicable, completes steps to obtain a court order.
Unenforceable Agreements (Written Agreement Formats)
The CSW obtains respondent financial information as required by the FLA to substantiate the unenforceable agreement.
For cases where there is not a presumption of parentage due to marriage, an unenforceable agreement is acceptable only if the respondent signs a Statement of Parentage.
When a respondent acknowledges parentage in writing, the document may be used at a later date for the following activities:
- If the applicant applies to CPP for dependant children benefits, the application may require signed acknowledgement of parentage by the respondent.
- Either the applicant or the dependant may require evidence of parentage if the matter becomes a court application.
- The applicant may require evidence of parentage in order to apply for Treaty Indian or Registered Indian Status for the dependants.
Method of Payment
All payments based on an unenforceable agreement are made by the respondent directly to the applicant.
Failure to Pay
If an unenforceable agreement stops while the applicant is receiving assistance, the CSW will be notified. A legally enforceable agreement should be pursued if this occurs.
Legally Enforceable Support Agreements
The CSW completes a CSS 0045 Support Agreement when:
- The respondent and the applicant are both 18 years of age or older, and
- Court action is not required to determine support or a finding of parentage, and
- An existing unenforceable agreement between parties is formalized to ensure the document is enforceable for registration with the Maintenance Enforcement Program (MEP) if payments stop, or
- No unenforceable agreement exists and:
- The respondent acknowledges he is a parent, and
- The applicant has not named any other possible parent, or
- Where DNA testing has confirmed the respondent is the parent and the respondent agrees to a reasonable amount of support that meets the Alberta Child Support Guidelines and Tables, or
- The applicant and respondent are divorced, the Divorce Order is silent as to support and the respondent agrees to a reasonable amount of support that meets the Alberta Child Support Guidelines and Tables.
The applicant approves the respondent’s offer for support by signing the CSS 0045 Support Agreement.
In situations where:
- The applicant is receiving assistance, and
- The applicant is unwilling to sign the agreement, and
- The CSW believes the amount of support is reasonable, and in accordance with the Alberta Child Support Guidelines and Tables.
the worker and the respondent sign the CSS 0045 Support Agreement.
When a respondent indicates he is not certain he is the parent, the CSW does not complete a CSS 0045 Support Agreement. The worker tells the respondent about DNA testing and his right to consult legal counsel.
Payment – No MEP Registration
Before negotiating a CSS 0045 Support Agreement, the CSW advises the respondent that:
- By signing the agreement, the respondent acknowledges they are a parent of the child or children, and
- The CSS 0045 Support Agreement is a legal enforceable document having the same force and effect as a court order.
- If there is a history (6 months or more) of the respondent making regular payments and all parties agree, the respondent may pay support directly to the applicant. Child and/or adult support payments made to an applicant's landlord, to utility companies, loan lenders, etc. by a person who is required to pay child or adult support is considered child support income. Paying money to another agency, business or person in lieu of having a legally enforceable agreement or court order is the same as paying that person directly.
“Regular payments” according to Best Practices, mean a minimum of 6 consecutive payments made in full and in accordance with the terms of the agreement or order.
- If a legally enforceable agreement or order exists, and full and regular payments are not made directly to the applicant, the agreement or order will be referred to MEP for registration and payments would then be disbursed to the Crown. The CSW completes the MEP registration within 20 days of becoming aware that the respondent did not make regular payment directly to the applicant.
- Defaulted payments: If the respondent defaults on a payment being made directly to the applicant, the agreement or order will be referred to MEP for registration. Applicable payments would then be disbursed to the Crown. The CSW should complete MEP registration within 20 days of receiving a BF or being notified the respondent did not make a regular payment.
When a CSS 0045 Support Agreement is obtained:
- Payments are to continue:
- while the applicant receives assistance,
- after the applicant’s assistance stops,
- if applicable, to the person who may assume the care and control of the child at a future date, and
- until the dependant turns 18 years of age or if the dependant is attending school full time, until the dependant turns 22 years of age.
- The applicant or the Director may apply to vary the agreement if the needs of the dependant increase or the respondent’s circumstances change.
- If payment to the applicant stops and the agreement is sent to MEP for registration, the applicant and the respondent cannot agree to change any amount of support that is owing to the Crown.
- Ensures the applicant and respondent receive copies of the agreement.
- Advises the applicant and respondent the agreement will be referred to MEP for registration if payments are not in accordance with the agreement (i.e. late, stop or become irregular).
- Advises the applicant of the terms of the agreement, including amount and the effective date of payment.
- Tells the applicant the support payments will be deducted dollar for dollar from their monthly assistance. Support received in one month will be deducted from the following month’s benefit.
- Refers the applicant to their financial worker for further clarification of Income Support policy.
- When circumstances allow for direct payment from the respondent to the applicant, the CSW advises the applicant to contact their financial worker each time a payment is made by the respondent.
- Advises applicant to contact their financial worker and nearest Child Support Services office if payments are not in accordance with the agreement or order (i.e. late, stop or become irregular).
Payment – MEP Registration
The CSW registers the CSS 0045 Support Agreement with MEP and directs payments to the Crown when:
- There has been no previous history of full and regular payments or
- One of the parties agree to this arrangement, or
- Payments to the applicant stop or decrease
When the CSW refers a CSS 0045 Support Agreement to MEP for registration, the CSW:
- Advises the applicant and respondent that payments are made to MEP. When the applicant is receiving assistance, the support is disbursed to the Crown.
- Advises the applicant and the respondent they cannot enter into an agreement to change any amount of support that is owing to the Crown. [IESA Part 5 Section 29(6)(c)]
- Advises the applicant support is not deducted from the assistance budget when the respondent makes payments to MEP and it is disbursed to the Crown.
- Ensures the applicant and respondent receive a copy of the agreement.
- Completes the MEP registration letters and sends to the respondent and applicant.
Advises the applicant to contact MEP if their assistance file closes, if their children leave their care, or if their assistance becomes less than the amount of their order/agreement. The applicant is responsible to advise MEP whether or not to continue to collect payments when assistance stops.
Payment to Caregiver
When the dependant is not in the care and control of a party to the CSS 0045 Support Agreement, the CSW registers the agreement with MEP with payments directed to the Crown.
The CSW advises the caregiver that when they stop receiving assistance, they must provide written notice to MEP that the dependant continues to be in their care. MEP would then send payments directly to the caregiver rather than to the party to the agreement.