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

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Exceptions to the Child Support Guidelines (view source)

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This section talks about the most common exceptions to the Guidelines tables:  
This section talks about the most common exceptions to the Guidelines tables:  
# where the payor earns more than $150,000 per year;  
* where the payor earns more than $150,000 per year;  
# where the parents have split or shared custody of the children;  
* where the parents have split or shared custody of the children;  
# where a minor child has become financially independent;  
* where a minor child has become financially independent;  
# and where undue hardship is claimed; and
* where undue hardship is claimed; and
# where other arrangements have been made for the direct or indirect benefit of the children.
* where other arrangements have been made for the direct or indirect benefit of the children.


==Payors with incomes higher than $150,000==
==Payors with incomes higher than $150,000==
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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:
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:


#the financial circumstances of the parties and the actual circumstances of their children,
*the financial circumstances of the parties and the actual circumstances of their children,
#the actual means and needs of the parties and the children,
*the actual means and needs of the parties and the children,
#the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
*the pre-separation spending patterns and standard of living and post-separation standard of living in both parents’ homes, and
#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.
*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.
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.
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====Counting time====
====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:
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. As a result, Section 9 is one of the most difficult sections of the Child Support Guidelines. 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.
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*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.
*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 [http://canlii.ca/t/g6rr2 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.
In the case of [http://canlii.ca/t/g6rr2 ''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====
====Calculating support====
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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:
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:


#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 their 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 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:
Section 147(1) of the ''[[Family Law Act]]'' say that:
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A person can be a ''spouse'' under the ''Family Law Act'' if:
A person can be a ''spouse'' under the ''Family Law Act'' if:


#he or she is married,
*they are married,
#he or she has lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
*they have lived in a marriage-like relationship with another person for a continuous period of at least two years, or,
#he or she has lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.
*they have lived in a marriage-like relationship for a shorter period of time if the couple has had a child together.


==Undue hardship==
==Undue hardship==
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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.  
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 ''[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 is not sufficient.
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 ''[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 is not sufficient.


Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:  
Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship:  
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<blockquote><blockquote><tt>(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...</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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...</tt></blockquote></blockquote>


Note that this list is not exhaustive, meaning that the court may take other factors, in addition to those in the list, into <span class="noglossary">account</span> in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:
This list is not exhaustive. The court may take other factors, in addition to those in the list, into <span class="noglossary">account</span> in deciding applications under s. 10. The test to prove that an order under the Guidelines would cause undue hardship involves two steps:


#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  
#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  
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