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Exceptions to the Child Support Guidelines (view source)
Revision as of 05:21, 1 December 2016
, 05:21, 1 December 2016→Undue hardship
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==Undue hardship== | ==Undue hardship== | ||
Under s. 10 of the Child Support Guidelines, the court can make an award of child support that is less | 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. | |||
Section 10 of the Guidelines | Section 10 of the Guidelines provides a non-exhaustive list of circumstances that may cause undue hardship: | ||
<blockquote><tt>(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.</tt></blockquote> | <blockquote><tt>(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.</tt></blockquote> | ||
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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: | 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 | |||
#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. | #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 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 | 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. | |||
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==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||