Maybe, maybe not.
Applying for a divorce is to ask a Judge to grant you a divorce under the Divorce Act. The Divorce Act places a positive obligation on all Judges to ensure that proper support is in place for minor children or children over the age of majority who are unable to withdraw from their parents’ charge. It is our experience that the Judges in Alberta take this obligation very seriously. This means that any Judge who is asked to grant a divorce will make sure that children are supported, and they will not grant a divorce in situations where they are not satisfied that there is sufficient support in place for a child.
The judicial obligation is coupled with the legal principle that child support is the right of the child. Every child is entitled to be supported by both of their parents in an amount that aligns with each of those parents’ incomes and ability to support a child. This means that even though your former spouse might agree that he or she does not want to receive child support from you, he or she is not allowed to waive your child’s right to receive that support from you.
Sometimes, Judges will agree to child support arrangements that fall outside of the generally applied Federal Child Support Guidelines. For example, if both parents make over $200,000 per year and they each provide financial support to the children. Other situations where this might be acceptable would be where the parent who has primary care of the children has a very high income and the other parent has a very low income. For example, if your income is $30,000 per year and your estranged wife’s income is $300,000 per year, the Court would probably accept an arrangement where you do not pay any child support.
Each of these situations must be looked at on a case-by-case basis and the Judge will certainly want to know the particulars about why child support is being waived and consider whether or not it is reasonable and whether or not your former spouse will have sufficient resources available to support your child.