Exceptions to the Child Support Guidelines
The court can, in limited circumstances, make orders for child support in amounts that are different than what would normally be required under the Child Support Guidelines tables. These are the exceptions to the Guidelines.
The same rules apply to parents and guardians who are making agreements about child support. But unless one of the Guidelines exceptions applies, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from what would normally be required under the Guidelines tables.
This section talks about the most common exceptions to the Guidelines tables, namely situations where:
- the payor earns more than $150,000 per year,
- one or more of the children live primarily with each parent,
- the parents share the children's time more or less equally,
- a minor child has become financially independent,
- undue hardship is claimed, and
- other arrangements have been made for the direct or indirect benefit of the children.
Payors with incomes higher than $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 formulas to calculate the amount of child support payable.
However, for payors with very high incomes, the formulas can result in child support payments that are so high they might begin to exceed what could reasonably be necessary to meet the children's expenses. As a result, section 4 of the Guidelines gives the court the flexibility to make an order for child support in an amount different than that generated by the formulas. Section 4 says this:
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.
The "amount determined under section 3," under section 4(a), is the formula amount. Section 4(b) allows the court to make an order other than in the formula amount if the formula amount is "inappropriate."
If the court decides that the formula amount is inappropriate, it will look at the parents' circumstances and the factors set out in section 4(b)(ii). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will usually consider the following factors in making its decision:
- the financial circumstances of the parents and the general circumstances of their children,
- the means and needs of the parents and their children,
- the parents' spending patterns before separation and the standard of living in their homes before and after separation, and
- whether the sheer magnitude of the child support payments would effectively work as an alternative payment of spousal support or as a wealth transfer beyond the purposes child support is intended to achieve.
It's important to know that there must be clear and convincing evidence that the formula amounts would be inappropriate. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented before the court will conclude that the usual support payment would be inappropriate. Each case will be assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.
The fundamental purpose of child support is to help pay for the expenses incurred by the parent or guardian who has the children most of the time, on the assumption that the person who has the children most of the time will bear a greater share of the direct and indirect costs associated with the children and their upkeep. Where parents have split parenting time, when each parent has the primary residence of one or more of the children, or shared parenting time, when the parents share the children's time equally or near-equally, these costs are presumed to be shared by both parents more evenly. As a result, the Guidelines make an exception to the normal rules for calculating child support.
Split parenting time
Section 8 of the Guidelines applies to split parenting time situations. Section 8 states that:
8. If there are two or more children, and each spouse has the majority of parenting time with one or more of those 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.
Where the primary residence of the children is split between the parents or guardians, 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.
Say that Parent A's obligation to Parent B for the children in Parent B's care is $1,000 per month, and that Parent B's obligation to Parent A for the children in Parent A's care is $250 per month. Parent A would pay $750 per month in child support, the difference between Parent A's obligation and Parent B's obligation, and Parent B would pay nothing.
Paying the difference between the two amounts is called paying the set-off amount of child support.
Section 9 of the Guidelines applies to shared parenting time situations. Section 9 states that:
9. If each spouse exercises not less than 40% of parenting time with a child 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 parenting time arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of their time. If the payor has this much of the children's time, the court may make an order that is different from the Guidelines tables. As a result, the two big issues here are how each party's time with the children is counted, and how the amount of child support payable should be calculated once the 40% threshold is reached.
Calculating the children's time
Problems about counting time involve the rules that will be applied in the calculation of time, such as deciding which person should get credit for the time the children are in school, whether the time the children are sleeping is counted, and whether the time the children are in the care of other people is counted. Section 9 is one of the most difficult sections of the Child Support Guidelines as a result. A few broad rules have emerged from the case law:
- If the parents have the children for an exactly equal amount of time, the 40% requirement has been met.
- Holiday periods in which the children spend an unusual amount of time with one parent or the other, shouldn't be used to figure out the average amount of time spent with each parent; rather, the court will look at the average amount of time spent in a typical one- or two-week period.
- The time the children are in school or in daycare will be credited to the parent who has a right to parenting time with the children during that time, on the principle that this person is the parent who would have to care for the children on a professional development day or attend the school or daycare in the event of illness or an emergency.
- If a parent's time with the children is specified in an agreement or a court order as concluding at the start or end of the school day, that's when that parent's time concludes and the other parent’s time starts, and credit will be divided accordingly.
In the 2014 Supreme Court case of C.M.B. v B.D.G., the court recognized that there is no universal formula for counting the time that children spend with each parent when the court is required to determine whether parents share parenting time for the purposes of child support. Of course, as is the case with most issues involving children, each case will be decided based on its own unique circumstances.
Calculating the amount of child support
Once the 40% threshold issue has been dealt with, the court must then decide how much child support ought to be paid, based on section 9 of the Guidelines. The intention of the legislation is to minimize differences in the children's living standards in each of their homes.
The analysis starts by determining each parent's income, and finding each parent's support obligation amount under the applicable Guidelines tables. Most of the time the amount of child support payable is the set off amount, which is calculated by subtracting the lower-income parent's child support obligation to the higher-income parent from the higher-income parent's obligation to the lower-earning parent. This is an easy solution to the calculation of child support and is easy to adjust when either parent's income goes up or down.
Say that Parent A's obligation to Parent B for the support of the children is $1,000 per month, and that Parent B's obligation to Parent A for the support of the children is $250 per month. Parent A would pay $750 per month in child support, the difference between Parent A's obligation and Parent B's obligation, and Parent B would pay nothing.
However, the court is also required to look at the increased costs associated with a shared parenting arrangement, and may conclude that the simple set-off approach is unfair. In a 2005 case from the Supreme Court of Canada, Contino v Leonelli-Contino, the court talked about increased costs and said that courts shouldn't just apply the off-set but carefully examine the parents' budgets and actual spending on their children to decide whether shared parenting time has resulted in increased costs to a parent. The court said that these increased expenses should then be divided between the parents in proportion to their respective incomes.
Finally, the court is also required to look at the "conditions, means, needs, and other circumstances" of each parent and the children. This gives the court a broad discretion to consider the resources and needs of the parents and the children. This might result in the income of a parent’s new partner being taken into account as part of the "means" of that parent, whether the parent is the payor or the recipient.
Although the court has developed a number of different formulas to calculate the amount of child support payable in shared parenting situations, in general, the set-off approach is used. It's straightforward and easy to calculate, and makes sense to most people. The set-off approach was approved by the Court of Appeal in the 2016 case of B.P.E. v A.E.
Income tax and child tax benefits
In order to ensure that both parents can share in claiming children as dependents on their tax returns and share in child tax benefits, in "split parenting time" or "shared parenting time" situations, an agreement or order should specify what amount of child support is to be paid by each parent to the other. If the agreement or court order only says that one parent will pay the set-off amount, the Canada Revenue Agency will take the position that only the receiving parent is entitled to claim the children as dependents and receive child tax benefits. CRA may request a copy of the agreement or court order to prove that the children are in a split or shared parenting situation.
Independent minor children
Eligibility for child support under both the Family Law Act and the Divorce Act is restricted to children under the age of 19, the age of majority in British Columbia, and to children who are 19 and older and are unable to live independently of their parents. Children are expected, at some point, to live on their own and become self-sufficient. This may occur before a child turns 19, and a parent may be relieved of the obligation to provide support to an independent child in such circumstances.
If a payor can prove that a minor child has voluntarily withdrawn from parental control and is living an adult, financially independent life, the child may not be entitled to benefit from child support. Children have been found to have withdrawn from their parents' care and control when they:
- are living with a boyfriend or girlfriend who provides for or helps to provide for the child's needs,
- have moved out from their parents' home and refuse to return, or
- are living on their own, maintaining a job, and paying their own bills without relying on money from their parents.
Section 147(1) of the Family Law Act say that:
Each parent and guardian of a child has a duty to provide support for the child, unless the child
(a) is a spouse, or
(b) is under 19 years of age and has voluntarily withdrawn from his or her parents' or guardians' charge, except if the child withdrew because of family violence or because the child's circumstances were, considered objectively, intolerable.
A person can be a "spouse" under the Family Law Act if they have:
- gotten married,
- lived in a marriage-like relationship with another person for a continuous period of at least two years, or
- lived in a marriage-like relationship for a shorter period of time and have had a child with the other person.
Under section 10 of the Child Support Guidelines, the court can make an award of child support that is different, usually less, than would be required by the Guidelines tables where a person would suffer undue hardship if the Guidelines table amount of child support were paid.
It's important to know that simply claiming that paying or receiving the table amount causes you hardship won't be enough to justify a child support order that is lower or higher than the Guidelines table amount. The hardship caused by payment or receipt of the table amount must be an undue hardship. According to Van Gool v Van Gool , a 1998 case from the Court of Appeal, "undue" means exceptional, excessive or disproportionate. In the 1999 Supreme Court case of Chong v Chong, the court held that establishing undue hardship requires proof of a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family are not sufficient.
Section 10 of the Guidelines provides a list of circumstances that may cause undue hardship:
(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 in deciding applications under section 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:
- Under section 10(3), the court must find that the household standard of living of the parent claiming undue hardship, calculated using the formulas described in Schedule II of the Guidelines, is lower than that of the other parent.
- Then, the court must find that an award under the Guidelines tables would in fact cause undue hardship to the payor or the recipient under section 10(1).
If you cannot prove a lower household standard of living under the first part of the test, don't bother trying to prove undue hardship under the second part of the test as your hardship claim has already been lost.
If both these steps have been met, however, the court will then decide what a reasonable child support order would be in light of the children's needs and the means of the parents. Note that the standards of living being compared are the standards of the two households. This includes all sources of income a household has, including income from the parents' new partners, if any.
Other arrangements for the children's benefit
Section 15.1(5) of the Divorce Act allows the court to order that an amount of child support other than the table amount be paid if it is satisfied:
(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.
It's up to the parents to convince the court that they have made special financial arrangements for the children such that a child support order under the Guidelines tables would be unfair. (One example might be if the parents have decided that one parent will take less than half the value of the house, and gives the house to the other parent who continues to live in the house with the children. Another example might be if the parents have agreed that one of them will be solely responsible for significant expenses associated with the children.)
This part of the Divorce Act is often important because section 11(1)(b) of the act requires the court to be satisfied that "reasonable arrangements" have been made for the support of any children before signing off on a divorce. "Reasonable arrangements" usually means that the table amount of child support is being paid. However, the court can use section 15.1(5) to accept orders or agreements between the parents that a different amount will be paid, and give the parents their divorce. This is unusual and you should speak to a lawyer.
Section 150(2) of the Family Law Act also allows the court to make an order for child support different from the Guidelines tables if the parents agree to the order or have an agreement on child support and the court is satisfied that those arrangements are "reasonable." Section 150(4) says that the court may make such an order if it is satisfied that:
(a) an agreement or order respecting the financial duties of the parents or guardians or the division or transfer of property, other than an agreement respecting child support, benefits the child directly or indirectly, or that special provisions have otherwise been made for the benefit of the child, and
(b) applying the child support guidelines would be inequitable on consideration of the agreement, order or special provisions.
Child support orders under section 150(2) of the Family Law Act are just as unusual as child support orders under section 15.1(5) of the Divorce Act.
- Adjust your child support using the Child Support Recalculation Service (CSRS)
- Dial-A-Law Script "Child Support"
- Legal Aid BC's Family Law website's information page "Child & spousal support"
- Under "Child support"
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 24 August 2022.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|