Exceptions to the Child Support Guidelines

The court has a limited ability to make orders for child support in amounts different than what would normally be required by the Child Support Guidelines tables. In general, unless one of the exceptions built into the Guidelines applies, the court must conclude either that the parents or guardians are making significant direct payments to the children's expenses or that an order under the tables would be unfair before the court will do anything other than make an order following the Guidelines tables.

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 page 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

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, these formulas can result in extremely large child support payments, to the point where the payments might begin to exceed what could reasonably be necessary to meet a child's expenses. As a result, s. 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:

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 formulas 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). While there is a very strong presumption that the Guidelines formulas are appropriate, this presumption can still be challenged, and the court will consider usually these factors in making its decision:

1. the financial circumstances of the parties and the actual circumstances of their children;
2. the actual means and needs of the parties and the children; and,
3. whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or as an asset transfer beyond the reasonable purpose of a child support order.

You should bear in mind that there must be clear and compelling evidence that the formula amounts would be unfair. There is a very strong presumption in favour of the Guidelines tables and formulas, and sufficient evidence must be presented to the effect that the support payment would have a result beyond the purpose of child support before the courts will make an order differing from what the Guidelines provide.

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:

• One Child: $1,302 plus 0.78% of income over $150,000
• Two Children: $2,061 plus 1.22% of income over $150,000
• Three Children: $2,668 plus 1.56% of income over $150,000
• Four Children: $3,165 plus 1.85% of income over $150,000
• Five Children: $3,579 plus 2.09% of income over $150,000
• Six or More Children: $3,929 plus 2.29% of income over $150,000

Split Custody and Shared Custody

The fundamental purpose of child support is to defray 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:

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 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 B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Paying the difference between the two amounts is called paying at the set-off.

Shared Custody

In order to fall within this exception to the Guidelines, the payor must have access to the children for 40% or more of their time. 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.

Counting Time

Problems about counting time involve the rules which 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.
• 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 of access to or custody of the children for them 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 an emergency.
• If a parent's time with the children is specified as concluding at the start or end of the school day, that's when that parent's time concludes, and credit will be divided accordingly.

Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

Calculating Support

Once the 40% issue has been dealt with, the court must then decide how much child support ought to be paid, and the court will consider factors such as:

1. the amount each parent would have to pay under the Guidelines tables;
2. the actual needs of the children;
3. the payor's ability to pay;
4. the actual amount of the payor's increased costs incurred as a result of having the children for so much time; and,
5. any savings realized by the recipient from the payor's contributions to the children's costs.

Although the court has developed a number of different formulas to calculate the amount of child support payable, where it thinks a reduction under s. 9 is appropriate, in general the set-off calculation used in cases of split custody will be used.

Say that parent A's obligation to parent B for the children in B's care is $1,000 per month, and that parent B's obligation to parent A for the children in A's care is $250 per month. A would pay $750 per month in child support, the difference between A's obligation and B's obligation, and B would pay nothing.

Just because a payor has the children for 40% or more of the time does not mean that a reduction is automatically applied. In 2005, the Supreme Court of Canada released its decision in a case called Contino v. Leonelli-Contino and confirmed that the presumption is in favour of the Guidelines tables. The court said that if a payor is to get a reduction from the table amounts, the payor must provide evidence that he or she actually pays increased expenses as a result of having the children for so much time. These expenses may include things like: a higher gas bill for driving the children to their activities, a higher grocery bill, a higher telephone bill, increased costs for clothing and hair cuts, and so forth.

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:

1. a child lives with a boyfriend or girlfriend who provides for or helps to provide for the child's needs;
2. a child has moved out from his or her parents' home and refuses to return; or,
3. 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:

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:

1. he or she is married;
2. he or she has lived in a marriage-like relationship with another person for at least two years; or,
3. he or she has lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.

Undue Hardship

Under s. 10 of the Child Support Guidelines, the court can make an award of child support which 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 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 problems like a lower standard of living or financial obligations for a new family won't cut it.

Section 10 of the Guidelines says this:

(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 s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

1. the court must find that an award under the Guidelines would in fact cause undue hardship to the payor or the recipient under s. 10(1); and then,
2. 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, this includes all sources of income a household has, including income from the parents' new partners, if any.

Further Reading in this Chapter

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