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This chapter discusses the most common exceptions to the Guidelines tables: where the payor earns more than $150,000 per year; where custody of the children is split or shared; where a child has become financially independent; and, where undue hardship is claimed. Income in Excess of $150,000 The tables set out in the Child Support Guidelines only go up to an annual gross income of $150,000. For incomes over that amount, the Guidelines provide a formula to calculate the amount of support properly payable as child support. For high-income payors, the amount of child support owing may be quite significant and begin to exceed what is reasonably necessary to meet a child's expenses. As a result, s. 4 of the Guidelines gives the court a certain amount of flexibility in deciding the amount of child support that is appropriate: Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is (a) the amount determined under section 3; or(b) if the court considers that amount to be inappropriate,(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and(iii) the amount, if any, determined under section 7. Before departing from the Guidelines tables under this section, the court must first determine that the formula amount would be inappropriate. If the court makes this finding, it then looks at the circumstances of the individual case and the factors set out in s. 4(b)(ii), set out above. While there is a very strong presumption that the Guidelines amounts are appropriate, this presumption can still be challenged. Because of certain decisions of the Supreme Court of Canada, the considerations the courts must take into account in deciding whether to make an order different from the Guidelines-equivalent include:
You should bear in mind that there must be "clear and compelling" evidence that the table amounts would be unfair. There is a built-in presumption in favour of the Guidelines amount, and sufficient evidence must be presented to the effect that the support payment would serve a non-child-support-related end before the courts will make an order differing from what the Guidelines provide. Calculating Support The current formulas for calculating the monthly amount of child support owing for payors with incomes in excess of $150,000 per year are as follows:
Back to the top of this chapter. Split Custody and Shared Custody The fundamental purpose of child support is to defray some of the costs borne by parent who has care of the children for most of the time, on the assumption that the parent who has the children for most of the time will bear most of the costs associated with the child. Where parents have split custody (the custody of two or more siblings is divided between their parents) or shared custody (the parents share the childrens' time almost evenly), these expenses are presumed to be shared more equally. As a result, the Guidelines make an exception to the normal rules. Sections 8 and 9 state that: 8. Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses. 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses;(b) the increased costs of shared custody arrangements; and(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. Split Custody Where custody of the children is split between the parents, the amount of the child support payable is the difference between what each parent would have to pay the other for the support of the children in their care. If parent A's obligation to parent B would be $1,000 per month for the children in B's care, and B's obligation to parent A for the children in A's care would $250 per month, A would pay B $750 per month in child support, being the amount of A's obligation less the amount of B's obligation. Parent B, of course, would not have to pay any support to parent A. Shared Custody In order to fall within this exception to the Guidelines, the payor must have access to the children 40% or more of the time. The two big issues here are how each parent's time with the children is calculated to reach the 40% level, and then how the amount of child support payable should be calculated once the 40% threshold is reached. Counting Time The problems here lie firstly in determining how each parent's time with the children should be counted, and secondly in determining which parent should get credit for the time the children are in school or in daycare. The essential difficulty here is that the 40% figure is absolutely arbitrary; there is no particularly good reason why the federal government chose 40% rather than 39% or 41%, or any other number. As a result, the calculation of time can sometimes come down to a rather bizarre question of mathematics. This is one of the most problematic provisions of the Child Support Guidelines. Some parents will say "he only wants to have the children half the time to avoid paying full child support," while others will say "she doesn't want me to have the kids half the time because she'll lose full support." Of course, the motives of the parent seeking more time with the children may be wholly legitimate, and sometimes parents have just thrown up their hands and agreed to pay the full amount just to secure more of the children's time. A few broad rules have emerged from the case law:
Of course, as in most issues involving children, each case will be decided on its own unique circumstances. Calculating Support The court's general analysis of this part of the Guidelines has been that once a parent begins to have access approaching near equality with the other parent, that parent begins to assume more and more of the costs relating to the child and therefore should get a break on child support. That being said, the court has also observed that a dollar spent by the access parent does not always equal a dollar saved by the parent with primary residence. Furthermore, giving a break to a payor with a high income may substantially reduce the child's quality of life if the other parent has a low income. As a result of all this, each case will be decided on its facts. The court will require that a person applying for a reduction in support under s. 9 discuss the actual needs of the child, the payor's ability to pay, the actual amount of increased expenses incurred by the payor as a result of the extensive access, and any savings realized by the payee as a result of these expenses. It used to be the case that there were a bunch of different formulae used by the courts to figure out what a payor should pay once the 40% threshold had been met. Some cases used a set off approach, subtracting a child support obligation of the recipient from the child support obligation of the payor, others just required the payor to pay 60% of the Guidelines tables amount, and others used a more complicated calculation. In 2005, the Supreme Court of Canada gave its judgment in Contino v. Leonelli-Contino. In that case, the court changed everything. Essentially, the court said that the Guidelines table amounts must be respected. If a payor is to get a reduction from the table amounts, the payor had to prove that he or she actually had increased costs associated with the children as a result of the greater amount of time the payor had the kids. Now, someone asking for a reduction from the table amounts must provide evidence of these increased costs before the court will even consider going below what the tables say should be paid. Costs will include things like: a higher gas bill for driving the children to their activities, a higher grocery bill, increased clothing costs and so forth. Back to the top of this chapter. Independent Children Eligibility for child support under both the Family Relations Act and the Divorce Act is restricted to children under the age of 19 who are "unable to withdraw" from the care of one or both parents. Children are expected, at some point, to live on their own and become independent. This may occur before a child turns 19. A parent may be relieved of the obligation to provide support to a minor, independent child in such circumstances. Note that this is more of an exception to child support generally rather than an exception to the Child Support Guidelines itself. If a payor can prove that his or her child has voluntarily withdrawn from parental control and is living an adult, financially independent lifestyle, that child may not be entitled to benefit from child support payments. In some cases, children have been found to have withdrawn from their parents' charge when:
Note that it is not just the fact of having left home that may free the payor from his or her obligation; the court will ask why the child left home. Leaving to go to school, for example, will not exempt a payor from his or her child support obligations. Back to the top of this chapter. Undue Hardship The court can make an award of child support which is less — or more — than is set out in the Child Support Guidelines tables where the payor or recipient would suffer "undue hardship" if the ordinary Guidelines child support amount were paid. The court will be concerned to find that an application for increased support because of undue hardship will not simply be a way for the receiving parent to supplement his or her income and lifestyle. Likewise, the court will be concerned to find that an application for decreased support isn't simply a way to pay less child support. As a result, mere "hardship" won't do. The hardship must be "undue," that is, the hardship must be really quite severe or profound. According to Van Gool v. Van Gool, a 1998 case of the Supreme Court, "undue" means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of Chong v. Chong, the court held that establishing undue hardship requires a high threshold of hardship, and that things such as a lower standard of living or obligations for a new family won't support an undue hardship claim. Section 10 of the Guidelines provides, in part, that: (1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. (2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;(b) the spouse has unusually high expenses in relation to exercising access to a child;(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is(i) under the age of majority, or(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability... Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into account. There are two steps required to prove that an order under the Guidelines would cause undue hardship:
If both these steps have been met, the court must then determine what a reasonable child support order would be. Note that the standards of living being compared are the standards of the household, this includes all sources of income a household has, including income from the parents' new partners, if any. While undue hardship claims are not impossible to make, they are rarely successful. Back to the top of this chapter. Site Navigation
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