Difference between revisions of "Exceptions to the Child Support Guidelines"

This section talks about the most common exceptions to the Guidelines tables, situations where:  

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 <span class="noglossary">costs</span> associated with the children and their upkeep. Where parents have ''split parenting time'' — each parent has the primary residence of one or more of the children — or ''shared parenting time'' — the parents share the children's time equally or near-equally — these <span class="noglossary">costs</span> are presumed to be shared by both parents. As a result, the Guidelines make an exception to the normal rules for calculating child support.  

#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 children on a professional development day or attend the school or daycare in the event of illness or an emergency.

In the 2014 case of [http://canlii.ca/t/g6rr2 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 in most issues involving children, each case will be decided based on its own unique circumstances.

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 reduce differences in the living standards the children have in each of the two homes in which they live.   

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, [http://canlii.ca/t/1lxpf 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.

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. Use of the set-off was approved by the Court of Appeal in the 2016 case of [http://canlii.ca/t/gsp1w B.P.E. v. A.E.], which gave deferred to the set-off approach in a shared parenting situation.

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 tax child 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.

It's important to know that just claiming that paying 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 of the table amount must be an ''undue'' hardship. According to [http://canlii.ca/t/1f0r2 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 [http://canlii.ca/t/1d1px 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 15.1(5) of the ''Divorce Act'' allows the court to order that an amount of child support of than the table amount be paid if is satisfied:

It is 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 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 might be if the parents have agreed that one parent will be solely responsible for significant expenses of the children. This is unusual, and will probably require the help of a lawyer.

{{REVIEWED | reviewer = [[JP Boyd]], 26 June 2022}}