2,443
edits
Difference between revisions of "Exceptions to the Child Support Guidelines"
From Clicklaw Wikibooks
Exceptions to the Child Support Guidelines (view source)
Revision as of 17:59, 17 April 2013
, 17:59, 17 April 2013no edit summary
Nate Russell (talk | contribs) |
Gayla Reid (talk | contribs) m |
||
| Line 10: | Line 10: | ||
The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions or a direct contribution to the children's expenses substituting for the full Guidelines amount, the court is unlikely to uphold an agreement that requires a child support payment less than the Guidelnes amount. | The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions or a direct contribution to the children's expenses substituting for the full Guidelines amount, the court is unlikely to uphold an agreement that requires a child support payment less than the Guidelnes amount. | ||
This | This section talks the most common exceptions to the Guidelines tables: where the payor earns more than $150,000 per year; where the parents have split or shared custody of the children; where a minor child has become financially independent; and, where undue hardship is claimed. | ||
==Payors with incomes higher than $150,000== | ==Payors with incomes higher than $150,000== | ||
| Line 44: | Line 44: | ||
==Split custody and shared custody== | ==Split custody and shared custody== | ||
The fundamental purpose of child support is to | The fundamental purpose of child support is to help cover some of the expenses paid 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 raising the children. Where parents have split custody (each parent has the primary residence of one or more children) or shared custody (the parents share the children's time equally or near-equally), these costs 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: | ||
<blockquote><tt>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.</tt></blockquote> | <blockquote><tt>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.</tt></blockquote> | ||
| Line 66: | Line 66: | ||
====Counting time==== | ====Counting time==== | ||
Problems about counting time involve the rules | Problems about counting time involve the rules that will be applied in the calculation, such as deciding which person should get credit for the time the children are in school or whether you should count the time when the children are sleeping. 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. | *If the parents have the children for an exactly equal amount of time, the 40% requirement has been met. | ||
| Line 99: | Line 99: | ||
#a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs, | #a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs, | ||
#a child has moved out from his or her parents' home and refuses to return, or | #a child has moved out from his or her parents' home and refuses to return, or | ||
#a child lives on his or her own, maintains a job and pays his or her own bills without relying on money from his or her parents. | #a child lives on his or her own, maintains a job, and pays his or her own bills without relying on money from his or her parents. | ||
Section 147(1) of the ''[[Family Law Act]]'' say that: | Section 147(1) of the ''[[Family Law Act]]'' say that: | ||
| Line 115: | Line 115: | ||
==Undue hardship== | ==Undue hardship== | ||
Under s. 10 of the Child Support Guidelines, the court can make an award of child support | Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is less or more 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. The court will be concerned to find that an application for increased support isn't just a way for the recipient to improve 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 for the payor to duck an unpleasant obligation. | ||
As a result, mere hardship won't do on an undue hardship application. 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 ]'', 1998 CanLII 5650 (BC CA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BC SC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family won't cut it. | As a result, mere hardship won't do on an undue hardship application. 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 ]'', 1998 CanLII 5650 (BC CA) a case of our Court of Appeal, ''undue'' means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of ''[http://canlii.ca/t/1d1px Chong v. Chong]'',1999 CanLII 6246 (BC SC) the court held that establishing undue hardship requires a "high threshold" of hardship, and that problems like a lower standard of living or financial obligations for a new family won't cut it. | ||
| Line 136: | Line 136: | ||
#under s. 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. | #under s. 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. | ||
If both these steps have been met, the court will then determine 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 household | If both these steps have been met, the court will then determine 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 household. This includes all sources of income a household has, including income from the parents' new partners, if any. | ||
<!---HIDDEN | <!---HIDDEN | ||
==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||
| Line 143: | Line 143: | ||
END HIDDEN---> | END HIDDEN---> | ||
== | ==Resources and links== | ||
===Legislation=== | ===Legislation=== | ||
