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.

The same rules apply to parents and guardians who are making agreements about child support. Without one of the Guidelines exceptions, the court is unlikely to uphold an agreement that provides for a child support payment that significantly departs from the Guidelines amount.

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

1. where the payor earns more than $150,000 per year;
2. where the parents have split or shared custody of the children;
3. where a minor child has become financially independent;
4. and where undue hardship is claimed; and
5. where 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, 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,
3. the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
4. whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or wealth 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 inappropriate. 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. Each case is assessed individually, in the context of each family’s particular financial circumstances and the children’s needs.

Split custody and shared custody

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.

Split custody

Section 8 of the Guidelines applies to split custody situations. S. 8 states 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.

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.

Example:

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 the set-off amount of child support.

Shared custody

S.9 of the Guidelines applies to shared custody situations. S.9 states that:

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.

In order to fall within this exception to the Guidelines, the payor must have the children for 40% or more of the 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 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.
• 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 of 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 an 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 case of C.M.B. v. B.D.G., 2014 BCSC 780 the court recognized that there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. Of course, as in most issues involving children, each case will be decided on its own unique circumstances.

Calculating 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 S.9 of the Guidelines. The intention is to reduce any difference in the living standards between the two homes in which the children live after their parents’ separation.

The starting point of the analysis is to look at the resulting child support amount by offsetting each parent’s obligation under the Guidelines (S. 9(a)).

The court will then look at the increased costs associated with a shared parenting arrangement (S.9 (b)).

In the leading case on S.9, Contino v. Leonelli-Contino, 2005 SCC 63, the Supreme Court of Canada said this with respect to S. 9 (b):

[52] What should the courts examine under this heading? Section 9(b) does not refer merely to the expenses assumed by the payor parent as a result of the increase in access time from less than 40 percent to more than 40 percent, as argued in this Court. This cannot be for at least two reasons. First, it would be irreconcilable with the fact that some applications under s. 9 are not meant to obtain a variation of a support order, but constitute a first order (see Payne, at p. 261). Second, as mentioned earlier, the Table amounts in the Guidelines do not assume that the payor parent pays for the housing, food, or any other expense for the child. The Tables are based on the amount needed to provide a reasonable standard of living for a single custodial parent (see Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report, at p. 2). This Court cannot be blind to this reality and must simply conclude that s. 9(b) recognizes that the total cost of raising children in shared custody situations may be greater than in situations where there is sole custody: Slade v. Slade, at para. 17; see also Colman, at pp. 71-74; Wensley, at pp. 83-85. Consequently, all of the payor parent’s costs should be considered under s. 9(b). This does not mean that the payor parent is in effect spending more money on the child than they were before shared custody was accomplished. As I discuss later in these reasons, it means that the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally. Increased costs would normally result from duplication resulting from the fact that the child is effectively being given two homes.

Finally, the court will look at the evidence regarding the conditions, means, needs and other circumstances of each parent and of the children (S. 9 (c)). Under S.9 (c), the court has broad discretion to analyze the resources and needs of both parents, and the children. So, for example, a parent’s new partner’s income may be taken into account as part of an overall analysis of that parent’s household income, whether that parent is the payor or the recipient of child support.

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 calculation will be used. This approach was recently confirmed by the British Columbia Court of Appeal in the case of B.P.E. v. A.E., 2016 BCCA 335, which gave deference to the set-off approach in a shared custody situation.

Example:

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

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 custody" or "shared custody" situations, an agreement or court order should specify what 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, CRA will take the position that only the receiving parent is entitled to claim the children as dependents and should receive tax child benefits. CRA may request a copy of the agreement or court order to prove that the children are in 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:

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 their parents' home and refuses to return, or
3. a child lives on their own, maintains a job, and pays 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:

1. are married,
2. have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
3. have 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 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.

Merely claiming "hardship" will not be sufficient to justify a child support order that is lower than the Guideline table amount. The hardship caused by payment of the table amount must be an undue hardship. According to Van Gool v. Van Gool , 1998 CanLII 5650 (BCCA) a case of our Court of Appeal, undue means "exceptional, excessive or disproportionate." In the 1999 Supreme Court case of Chong v. Chong,1999 CanLII 6246 (BCSC) 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 is not sufficient.

Section 10 of the Guidelines provides a non-exhaustive 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 s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:

1. 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, and
2. 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)

If you cannot prove a lower standard of living under step 1 above, do not bother going to step 2 because the hardship claim has already been lost.

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 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 Direct or Indirect Benefit

Section 11(1) (b) of the Divorce Act requires a judge to be satisfied that reasonable arrangements have been made for the support of the children of the marriage before signing off on the divorce. This usually requires that the Child Support Guideline amount of child support be paid.

However, Section 15.1 (5) of the Divorce Act allows the court to order a different amount of child support or accept an agreement between the parents and give them the divorce, but this is unusual, and the parents must show that they made reasonable financial arrangements for the children. An example would be where the parents decide that one parent takes less than half of the value of the house and gives it to the other parent who continues to live in the house with the children. This is unusual, and will probably require the help of a lawyer.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Child Support Guidelines

Links

• Canadian Bar Association BC Branch: Script on child support
• Legal Services Society Family Law Website: What the child support guidelines are and how they work
• Legal Services Society Family Law Website: Child support

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by William Murphy-Dyson and Inga Phillips, June 14, 2019.

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.