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

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:

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 usually consider the following factors in making its decision:

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

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

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, [http://canlii.ca/t/1lxpf ''Contino v. Leonelli-Contino''], 2005 SCC 63, the Supreme Court of Canada said this with respect to s. 9(b):

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.

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.   

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.  

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:

#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  

#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)