This Lawletter is a continuation of “Child Support Guidelines”. Please refer to it for additional information.
Exceptions
The table amount of child support must be paid and will only be varied in limited circumstances. Some of the exceptions to paying the table amount of child support are:
- For incomes over $150,000 per year;
- Stepchildren;
- Split custody;
- Shared custody; and,
- Undue hardship.
1. Incomes Over $150,000
The Child Support Guidelines provide that the payor parent may not necessarily pay the table amount of child support for that portion of their income over $150,000. However, subsequent case law has indicated that the table amount of child support for that portion of the payor parent’s income over $150,000 will be paid unless there are exceptional circumstances. If this applies to you, either as a payor or recipient parent, you should consult an experienced family law practitioner.
2. Stepchildren
The law does require stepparents to be financially responsible for stepchildren in certain circumstances. The circumstances in which stepparents are required to be financially responsible for stepchildren are varied and you will need the advice of an experienced family law lawyer first to determine whether the stepparent is financially responsible for their stepchildren.
The Child Support Guidelines do provide, however, that the stepparent may not necessarily have to pay the full table amount of child support for a stepchild. Again, the circumstances are varied and the advice of an experienced family law lawyer should be sought.
3. Split Custody
Where each parent has custody of one or more children, the amount of child support paid is the difference between the amounts that each spouse would otherwise pay if a child support order was sought against each of the parents. For example, if the father earned $40,000 per year, and the mother earned $30,000 per year, and they each have custody of one child, the father would be required to pay the mother $334.00 per month for child support; however, the mother would be required to pay the father $260.00 per month in child support. The net result is that the father pays the mother $74.00 per month in child support ($334.00 – $260.00 = $74.00).
4. Shared Custody
The Child Support Guidelines provide that where one spouse exercises a right of access to, or has physical custody of, a child for not less than 40% of the time over the course of the year, the amount of child support ordered will be determined by taking into account:
- a) the amount set out in the applicable tables for each of the parents;
- b) the increased costs of shared custody arrangements; and,
- c) the conditions, means, needs and other circumstances of each parent and of any child for whom support is sought.
The Supreme Court of Canada in the Leonelli-Contino v. Contino decision says that the set off approach used in cases of Split Custody is the starting point in cases of Shared Custody, but it is not the end result. The court must examine the budgets and actual expenditures of both parents in addressing the needs of the children in determining child support. The court will look at the standard of living of the child in each household and the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances. Financial statements and/or child expense budgets are necessary for a proper evaluation.
There is no presumption that the table amount of child support will be reduced where there is shared parenting. An appropriate and fair amount of child support will depend on a number of factors, including, tax deductions received by each parent, who is paying for special and extra-ordinary expenses such as day care, responsibility for other children, etc.
5. Undue Hardship
The undue hardship provision of the Child Support Guidelines was put in place for the unusual situations where the recipient parent has a higher disposable income than the payor parent.
Under certain circumstances, the Court may award a lesser amount of child support if the payment of the child support will cause an undue hardship on the payor parent. Circumstances which may cause a payor parent to suffer undue hardship include the following:
- a) the payor parent has responsibility for an unusually high level of debt reasonably incurred to support the parties and their children prior to separation or to earn a living;
- b) the payor parent has unusually high expenses in relation to exercising access to a child;
- c) the payor parent has a legal duty under a judgment, order or written separation agreement to support any person;
- d) the payor parent has a legal duty to support a child, other than a child of the marriage, who is under the age of majority, or the age of majority but is unable by reason of illness, disability or other cause, to obtain the necessities of life; and,
- e) the payor parent has a legal duty to support any person who is unable to obtain the necessities of life due to an illness or a disability.
- The first step in making a claim for undue hardship is that the payor parent must show that his or her standard of living is less than the recipient parent.
There is a Household Standards Living Test set out in Schedule II of the Child Support Guidelines.
Most family law practitioners utilize a software program to compute the appropriate ratios for the Standard of Living Test. You should contact an experienced family law lawyer if you feel you have a claim for undue hardship.
This information has been provided for general reference only. For advice on an actual matter, you should consult a lawyer. Connect with a member of our team today to schedule an appointment. To contact a member of our team call us at 902-469-9500 or 1-866-339-3400 or contact us online to make an appointment.