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AR 287/2009 CHILD SUPPORT RECALCULATION PROGRAM REGULATION

(Consolidated up to 16/2014)

ALBERTA REGULATION 287/2009

Family Law Act

CHILD SUPPORT RECALCULATION PROGRAM REGULATION

Table of Contents

                1      Definitions

                2      Child support agreements

                3      Notification by recalculation program


                4      Notification to recalculation program

                5      Eligibility for recalculation

                6      Orders directing recalculation by Director of Maintenance Enforcement

                7      Registration

                8      Withdrawal

                9      Waiver

              10      Contact information

              11      Income information

              12      Recalculation threshold

              13      Self‑employment income

              14      Recalculation decision

              15      Correction

              16      Decline to recalculate

              17      Notification of objection

              18      Collection, use and disclosure of information

              19      Service fee

              20      Expiry

              21      Coming into force

Definitions

1   In this Regulation,

                               (a)    “Act” means the Family Law Act;

                              (b)    “anniversary date” means,

                                        (i)    subject to section 5(5), the anniversary in any year of the month and day on which a child support order or child support agreement was made, or

                                      (ii)    if there is more than one child support order in respect of the same parties and children, registered and eligible for recalculation in accordance with the Act and regulations, the annual anniversary of the month and day on which the child support order made latest in the calendar year was issued;

                               (c)    “recorded mail” means a form of document delivery by mail or courier by which the addressee of the document, or a person on the addressee’s behalf, is required to acknowledge receipt of the document by signing for it.

AR 287/2009 s1;16/2014

Child support agreements

2(1)  Provisions respecting a child support order in Part 3, Division 1.1 of the Act, except in sections 55.1(b), 55.21 and 55.4(1), and in this Regulation apply to a child support agreement if the child support agreement is enforceable under the Maintenance Enforcement Act and the regulations under that Act.

(2)  Where a child support agreement has been recalculated by the recalculation program, a payor or recipient who does not agree with the recalculated amount may object, within 30 days after receiving notification respecting the recalculated amount, by commencing an application for a child support order, and section 55.4(2) to (5) of the Act apply to the application as if it were an application under that section.

Notification by recalculation program

3(1)  Notice to a payor or a recipient required to be given by the recalculation program may be sent by ordinary mail to the last known address of the payor or recipient shown in the records of the recalculation program.

(2)  Where a payor or recipient has requested to be notified by electronic means or by fax, the recalculation program may notify the payor or recipient in accordance with the request.

(3)  The notification by electronic means referred to in subsection (2) may include having the notification posted on a website maintained by the recalculation program for that purpose.

(4)  Notification sent, provided or posted by the recalculation program under subsection (1), (2) or (3) is deemed to have been received 7 days from the date on which it was mailed, faxed, sent or posted by the recalculation program.

(5)  Where notification is sent to the payor’s or recipient’s last known address but is returned to the recalculation program as undeliverable to the payor or recipient, as the case may be, the payor or recipient is deemed to have received the notification in accordance with subsection (4).

(6)  For the purposes of subsection (5), the "last known address" of the payor or recipient includes a fax number, e-mail address or other electronic address if the payor or recipient, as the case may be, has requested notification by electronic means or fax under subsection (2).

Notification to recalculation program

4(1)  Any notice or information that a payor or recipient is required to provide to the recalculation program in writing may be provided by the following means:

                               (a)    ordinary or recorded mail;

                              (b)    personal delivery;

                               (c)    fax;

                              (d)    an electronic format and means of transmission approved by the recalculation program, including posting the notice or information on a website maintained by the recalculation program for that purpose.

(2)  A payor or recipient may provide contact information to the recalculation program pursuant to section 55.5 of the Act by

                               (a)    any means listed in subsection (1),

                              (b)    telephone, or

                               (c)    any automated telephone or internet reporting method that may be provided by the recalculation program for that purpose from time to time.

AR 287/2009 s4;16/2014

Eligibility for recalculation

5(1)  A child support order is eligible for recalculation in accordance with section 55.11(2) of the Act if the child support order was made on or after May 1, 1997.

(2)  Notwithstanding subsection (1), a child support order is not eligible for recalculation in accordance with section 55.11(2) of the Act if the child support order indicates that

                               (a)    the payor’s income was imputed by the court,

                              (b)    the child support order was made on a basis that is stated to be “without prejudice” or “predisclosure”,

                               (c)    the amount of child support specified in the child support order shall not be recalculated by the recalculation program, or

                              (d)    the recalculation of the amount of child support specified in the child support order shall

                                        (i)    be based on a different date than the anniversary date, or

                                      (ii)    be based on income information not included in section 11.

(3)  If a child support order indicates that the recipient’s income was imputed by the court then, despite subsection (1),

                               (a)    the child support order is not eligible for recalculation in accordance with section 55.11(2)(a) of the Act if the recipient’s income was used by the court to determine the amount of child support specified in the child support order that was determined in accordance with the applicable table of the child support guidelines, and

                              (b)    the child support order is not eligible for recalculation in accordance with section 55.11(2)(b) of the Act.

(4)  Notwithstanding subsection (2)(d)(i), a child support order made prior to the coming into force of this Regulation that indicates that recalculation is to be based on a date other than the anniversary date is eligible for recalculation in accordance with section 55.11(2) of the Act if

                               (a)    the order specifies a date for the purpose of annual recalculation of the amount of child support set in the order, or

                              (b)    the order specifies a date by which the parties must exchange income information for the purpose of recalculation.

(5)  Where a child support order specifies a date as described in subsection (4)(a) or (b), the anniversary date of the order for the purposes of this Regulation is deemed to be

                               (a)    in the case of a date specified in subsection (4)(a), the date specified, and

                              (b)    in the case of a date specified in subsection (4)(b), a date 60 days after the date specified.

AR 287/2009 s5;16/2014

Orders directing recalculation by Director of Maintenance Enforcement

6   Where a child support order directs the Director of Maintenance Enforcement to recalculate the amount of child support periodically, the recalculation may be performed by the recalculation program

                               (a)    with the agreement of the Director of Maintenance Enforcement, and

                              (b)    if the child support order is otherwise eligible for recalculation in accordance with the Act and this Regulation.

Registration

7(1)  A payor or recipient may apply to register a child support order with the recalculation program by providing to the recalculation program the following information:

                               (a)    the payor’s or recipient’s own contact information in accordance with section 10(1);

                              (b)    any contact information known to the payor respecting the recipient or the recipient respecting the payor, as the case may be;

                               (c)    any information required by the recalculation program for the purpose of determining whether the child support order is eligible for recalculation.

(1.1)  The recalculation program may decline an application to register a child support order if

                               (a)    the child support order is not eligible for recalculation in accordance with the Act and this Regulation,

                              (b)    the recalculation program is aware that a date has been set for the court to hear an application respecting the amount of child support specified in the child support order,

                               (c)    in the opinion of the recalculation program, recalculation may be impracticable or too complex for the recalculation program to perform or may, in the circumstances, produce a result that is unjust, or

                              (d)    a payor or recipient has failed to pay

                                        (i)    the service fee required in respect of a previous recalculation, or

                                      (ii)    court costs awarded to the recalculation program.

(2)  The recalculation program shall not recalculate the amount of child support under a child support order until the recalculation program is satisfied that both the payor and the recipient know of the registration of the child support order under subsection (1).

(3)  Where a child support order has been registered under subsection (1), a subsequent order that varies the amount of child support specified in that child support order

                               (a)    must be provided to the recalculation program by the payor or the recipient, and

                              (b)    is not required to be registered under subsection (1).

(4)  Nothing in a court order shall be construed so as to prevent the recalculation program from declining to register a child support order in accordance with this section.

AR 287/2009 s7;16/2014

Withdrawal

8(1)  A child support order may be withdrawn from registration with the recalculation program if

                               (a)    the payor or recipient who registered the child support order requests the withdrawal in writing, or

                              (b)    the recipient or payor who did not register the child support order requests the withdrawal in writing and the recalculation program does not have current contact information for the payor or recipient who registered the child support order.

(2)  Notwithstanding subsection (1), if a government department or agency is entitled to receive all or a portion of the amount of child support payable under a child support order, the child support order may only be withdrawn from registration with the consent of the government department or agency, as the case may be.

(3)  Subject to subsection (2), upon receiving a withdrawal request in accordance with subsection (1), the recalculation program shall decline to perform any further recalculations in respect of that child support order until the payor or the recipient registers the order in accordance with section 7.

(4)  Notwithstanding subsection (3), if the request for withdrawal is received by the recalculation program less than 60 days before the anniversary date of the child support order, the recalculation program may perform the recalculation for that year.

Waiver

9(1)  If, 60 days or more before the anniversary date of a child support order, the payor and the recipient provide written notice to the recalculation program of their intention to waive recalculation for that year, the recalculation program shall not recalculate child support for that year.

(2)  Notwithstanding subsection (1), if a government department or agency is entitled to receive all or a portion of the amount of child support payable under a child support order, the recalculation of the child support order may only be waived with the consent of the government department or agency, as the case may be.

Contact information

10(1)  For the purposes of Part 3, Division 1.1 of the Act and this Regulation, contact information in respect of a payor or a recipient includes

                               (a)    the payor’s or recipient’s own current mailing address and telephone number, and

                              (b)    any other information, including an e‑mail address or fax number, that would facilitate written or verbal communications from the recalculation program to the payor or recipient.

(2)  Pursuant to section 55.5 of the Act, a payor or recipient shall provide the recalculation program with contact information within 30 days of any of the following events occurring:

                               (a)    registration under section 7;

                              (b)    any change in the payor’s or recipient’s contact information;

                               (c)    a request for contact information by the recalculation program.

(3)  A request by the recalculation program under subsection (2)(c) may be made by telephone.

Income information

11(1)  For the purposes of Part 3, Division 1.1 of the Act and this Regulation, income information means

                               (a)    a copy of the payor’s or recipient’s personal income tax return filed for the most recent taxation year,

                              (b)    a copy of every notice of assessment and reassessment issued to the payor or recipient for the most recent taxation year, and

                               (c)    other information requested by or provided to the recalculation program for the purpose of determining the payor’s or recipient’s ownership of or involvement in any privately held corporation.

(2)  A payor or recipient whose income information is necessary for the purpose of recalculation shall provide that income information to the recalculation program at least 60 days before the anniversary date of the child support order.

AR 287/2009 s11;16/2014

Recalculation threshold

12   For the purposes of section 55.31 of the Act,

                               (a)    the recalculated amount must differ from the amount of child support currently required to be paid under the child support order by at least $10 per month, or

                              (b)    if the condition set out in clause (a) is not met, each of the payor’s and recipient’s recalculated proportionate shares of any special or extraordinary expenses must differ by at least 10 percentage points from the proportionate shares currently required to be paid under the child support order.

Self‑employment income

13   Where the income information provided by a payor or recipient shows a loss in income from self‑employment, the recalculation program shall not take that loss into account in determining the income of the payor or the recipient unless otherwise directed by a court.

Recalculation decision

14(1)  Where recalculation produces a recalculated amount that meets the conditions set out in section 12, the recalculation program shall notify the payor and the recipient respecting the change in the amount of child support payable under the child support order, including

                               (a)    the recalculated amount, specifying the amount of child support determined in accordance with the applicable table of the child support guidelines and the proportionate shares of any special or extraordinary expenses,

                              (b)    the incomes of the payor and recipient used to determine the recalculated amount and the method by which those incomes were determined,

                               (c)    the effective date of the recalculated amount, and

                              (d)    the right of the payor or the recipient to object to the recalculated amount in accordance with section 55.4 of the Act.

(2)  Where recalculation produces a recalculated amount that does not meet the conditions set out in section 12, the recalculation program shall notify the payor and the recipient that there is no change in the amount of child support payable under the child support order.

(3)  The recalculation program may send the Director of Maintenance Enforcement the recalculation decision under this section, irrespective of whether it results in a change in the amount of child support payable under the child support order.

(4)  The recalculation decision under this section shall be filed with the Court irrespective of whether it results in a change in the amount of child support payable under the child support order.

Correction

15(1)  If, after the recalculation program has recalculated a child support amount, the recalculation program discovers a mistake in the recalculation decision, including but not limited to a clerical error, the recalculation program may

                               (a)    correct the mistake and issue an amended recalculation decision, or

                              (b)    if the decision should not have been issued, issue a notice that the decision has been revoked.

(2)  A recalculated amount that has been corrected under this section takes effect on the day the recalculated amount would have taken effect if there had been no mistake.

(3)  An amended recalculation decision or a notice of revocation referred to in subsection (1) must be sent to the payor and the recipient and filed with the Court, and may be sent to the Director of Maintenance Enforcement in accordance with section 14.

(4)  If the amended recalculation decision amount changes the amount of child support due under the child support order, the payor and the recipient have the right to object to the corrected recalculated amount in accordance with section 55.4 of the Act.

(5)  If the amended recalculation decision changes the amount of child support due under a child support agreement, the payor and the recipient have the right to object to the corrected recalculated amount in accordance with section 2(2).

AR 287/2009 s15;16/2014

Decline to recalculate

16(1)  The recalculation program

                               (a)    shall decline to recalculate the amount of child support due under a child support order if the recalculation program is aware that a date has been set for the court to hear an application respecting the amount of child support specified in the child support order, and

                              (b)    may decline to recalculate the amount of child support due under a child support order if

                                        (i)    in the opinion of the recalculation program, recalculation may be impracticable or too complex for the recalculation program to perform or may, in the circumstances, produce a result that is unjust,

                                      (ii)    in respect of the first recalculation, the child support order was registered less than 4 months prior to the anniversary date of the child support order, or

                                     (iii)    both the payor and the recipient have failed to pay the service fee required in respect of a previous recalculation.

(2)  Nothing in a court order shall be construed so as to prevent the recalculation program from declining to recalculate a child support order in accordance with this section.

Notification of objection

17(1)  The written notification to be provided to the recalculation program by a payor or recipient who has commenced an application pursuant to section 55.4 of the Act to object to a recalculated amount must include

                               (a)    a filed copy of any document filed with the court to commence the application, and

                              (b)    where a date has been set for the court to hear the application referred to in clause (a), the date, time and place of the hearing.

(2)  The written notification to be provided to the recalculation program by a payor or recipient who has not yet filed an application pursuant to section 55.4 of the Act to object to a recalculated amount because of the need to comply with mandatory prerequisites or requirements of the Court must include

                               (a)    the reason for the delay in filing the application, and

                              (b)    what the payor or the recipient has done to comply with any mandatory prerequisites or requirements of the court in respect of the application,

and must authorize the recalculation program to verify that information with the court and with any other person, body or organization involved.

Collection, use and disclosure of information

18(1)  The recalculation program may obtain information respecting a payor or a recipient from the Director of Maintenance Enforcement and from a designated authority in Alberta under the Interjurisdictional Support Orders Act for the purpose of recalculation and may rely on that information without further verification.

(2)  The recalculation program may disclose income information about a payor to a recipient, or about a recipient to a payor, without the consent of the payor or recipient whose income information is being disclosed.

(3)  The recalculation program may disclose personal information and documents about a payor to a recipient, or about a recipient to a payor, without the consent of the payor or recipient whose personal information and documents are being disclosed, where the personal information or document

                               (a)    is used in making a decision to decline an application to register a child support order with the recalculation program, or to decline to recalculate a child support amount,

                              (b)    may be relevant to an objection under section 55.4 of the Act, or

                               (c)    has been filed for use in a court proceeding in Alberta or is otherwise available to the public.

(4)  The recalculation program may disclose personal information about a payor or a recipient for the purpose of complying with a subpoena, warrant or other order issued or made by a court, person or body having jurisdiction in Alberta to compel the production of information or with a rule of court binding in Alberta that relates to production of information.

(5)  The recalculation program may disclose personal information about a payor or a recipient to the Auditor General.

(6)  If a payor or a recipient has requested a Member of the Legislative Assembly to assist in resolving a problem, the recalculation program may disclose to the Member on request any personal information that the recalculation program could disclose about the payor to the recipient, or about the recipient to the payor, under this section, as the case may be.

(7)  The recalculation program may disclose personal information about a payor or a recipient to a public body or a law enforcement agency in Canada to assist in an investigation

                               (a)    undertaken with a view to a law enforcement proceeding, or

                              (b)    from which a law enforcement proceeding is likely to result.

(8)  The recalculation program may disclose personal information about a payor or a recipient for a research purpose in accordance with section 42 of the Freedom of Information and Protection of Privacy Act.

(9)  The recalculation program may disclose personal information respecting a payor or recipient to the Director of Maintenance Enforcement under the Maintenance Enforcement Act for the purposes of that Act.

(10)  The recalculation program may disclose contact information about a payor or a recipient to a designated authority in Alberta under the Interjurisdictional Support Orders Act.

(11)  The recalculation program may disclose personal information about a payor or a recipient to an officer of the Legislative Assembly if the information is necessary for the performance of the duties of that officer.

(12)  The recalculation program may collect personal information about a payor or a recipient from, and may disclose personal information to which that payor or recipient, as the case may be, is entitled under Part 3, Division 1.1 of the Act to, any of the following:

                               (a)    the payor’s or recipient’s personal representative, if the payor or recipient is deceased;

                              (b)    a guardian or trustee, if the payor or recipient is a dependant adult;

                               (c)    an agent under the personal directive of the payor or recipient;

                              (d)    an attorney under a power of attorney given by the payor or recipient;

                               (e)    a guardian, if the payor or recipient is under the age of 18 years, unless to do so would be an unreasonable invasion of the payor’s or recipient’s privacy;

                               (f)    any person who has the written consent of the payor or recipient;

                               (g)    a department or agency of the Government of Alberta, if the personal information covers a time period during which the department or agency was entitled to receive all or a portion of the amount of child support payable under a child support order.

AR 287/2009 s18;16/2014

Service fee

19   The service fee that may be charged by the Director pursuant to section 55.71 of the Act is $75 to each of the payor and the recipient.

Expiry

20   For the purpose of ensuring that this Regulation is reviewed for ongoing relevancy and necessity, with the option that it may be repassed in its present or an amended form following a review, this Regulation expires on January 1, 2019.

AR 287/2009 s20;16/2014

Coming into force

21   This Regulation comes into force on the coming into force of the Family Law Amendment Act, 2008.