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Exceptions to the Child Support Guidelines (view source)
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{{JP Boyd on Family Law TOC|expanded = childsupport}} | {{JP Boyd on Family Law TOC|expanded = childsupport}} | ||
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| resourcetype = <br/>more resources on<br/> | |||
| link = [http://www.clicklaw.bc.ca/global/search?k=child%20support child support] | |||
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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. In general, unless one of the exceptions built into the Guidelines applies, the court must conclude either that the parents or guardians are making significant direct payments to the children's expenses or that an order under the tables would be unfair before the court will do anything other than make an order following the Guidelines tables. | 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. In general, unless one of the exceptions built into the Guidelines applies, the court must conclude either that the parents or guardians are making significant direct payments to the children's expenses or that an order under the tables would be unfair before the court will do anything other than make an order following the Guidelines tables. | ||
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This page talks the most common exceptions to the Guidelines tables: where the payor earns more than $150,000 per year; where the parents have split or shared custody of the children; where a minor child has become financially independent; and, where undue hardship is claimed. | This page talks the most common exceptions to the Guidelines tables: where the payor earns more than $150,000 per year; where the parents have split or shared custody of the children; where a minor child has become financially independent; and, where undue hardship is claimed. | ||
==Payors with | ==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. | 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. | ||
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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, and | ||
#whether the sheer magnitude of the child support payments would effectively work as alternative payment of spousal support or as an asset 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 as an asset transfer beyond the reasonable purpose of a child support order. | ||
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*'''Six or More Children:''' $3,929 plus 2.29% of income over $150,000 | *'''Six or More Children:''' $3,929 plus 2.29% of income over $150,000 | ||
==Split | ==Split custody and shared custody== | ||
The fundamental purpose of child support is to defray 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. Sections 8 and 9 state that: | The fundamental purpose of child support is to defray 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. Sections 8 and 9 state that: | ||
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<blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.</tt></blockquote></blockquote> | ||
===Split | ===Split custody=== | ||
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. | 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. | ||
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Paying the difference between the two amounts is called paying at the ''set-off''. | Paying the difference between the two amounts is called paying at the ''set-off''. | ||
===Shared | ===Shared custody=== | ||
In order to fall within this exception to the Guidelines, the payor must have access to the children for 40% or more of their 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. | In order to fall within this exception to the Guidelines, the payor must have access to the children for 40% or more of their 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 | ====Counting time==== | ||
Problems about counting time involve the rules which 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 which 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: | ||
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Of course, as in most issues involving children, each case will be decided on its own unique circumstances. | Of course, as in most issues involving children, each case will be decided on its own unique circumstances. | ||
====Calculating | ====Calculating support==== | ||
Once the 40% issue has been dealt with, the court must then decide how much child support ought to be paid, and the court will consider factors such as: | Once the 40% issue has been dealt with, the court must then decide how much child support ought to be paid, and the court will consider factors such as: | ||
#the amount each parent would have to pay under the Guidelines tables | #the amount each parent would have to pay under the Guidelines tables, | ||
#the actual needs of the children | #the actual needs of the children, | ||
#the payor's ability to pay | #the payor's ability to pay, | ||
#the actual amount of the payor's increased costs incurred as a result of having the children for so much time | #the actual amount of the payor's increased costs incurred as a result of having the children for so much time, and | ||
#any savings realized by the recipient from the payor's contributions to the children's costs. | #any savings realized by the recipient from the payor's contributions to the children's costs. | ||
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<blockquote>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.</blockquote> | <blockquote>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.</blockquote> | ||
Just because a payor has the children for 40% or more of the time does not mean that a reduction is automatically applied. In 2005, the Supreme Court of Canada released its decision in a case called ''Contino v. Leonelli-Contino'' and confirmed that the presumption is in favour of the Guidelines tables. The court said that if a payor is to get a reduction from the table amounts, the payor must provide evidence that he or she actually pays increased expenses as a result of having the children for so much time. These expenses may include things like: a higher gas bill for driving the children to their activities, a higher grocery bill, a higher telephone bill, increased costs for clothing and hair cuts, and so forth. | Just because a payor has the children for 40% or more of the time does not mean that a reduction is automatically applied. In 2005, the Supreme Court of Canada released its decision in a case called ''[http://canlii.ca/t/1lxpf Contino v. Leonelli-Contino]'', [2005] 3 SCR 217 and confirmed that the presumption is in favour of the Guidelines tables. The court said that if a payor is to get a reduction from the table amounts, the payor must provide evidence that he or she actually pays increased expenses as a result of having the children for so much time. These expenses may include things like: a higher gas bill for driving the children to their activities, a higher grocery bill, a higher telephone bill, increased costs for clothing and hair cuts, and so forth. | ||
==Independent | ==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. | 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: | 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 | #a child has moved out from his or her 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 his or her own, maintains a job and pays his or her own bills without relying on money from his or her parents. | ||
Section 147(1) of the ''Family Law Act'' say that: | Section 147(1) of the ''[[Family Law Act]]'' say that: | ||
<blockquote><tt>Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote> | <blockquote><tt>Each parent and guardian of a child has a duty to provide support for the child, unless the child</tt></blockquote> | ||
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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 | #he or she is married, | ||
#he or she has lived in a marriage-like relationship with another person for at least two years | #he or she has lived in a marriage-like relationship with another person for 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. | #he or she has lived in a marriage-like relationship for a shorter period of time if the couple has had a child together. | ||
==Undue | ==Undue hardship== | ||
Under s. 10 of the Child Support Guidelines, the court can make an award of child support which is less or more 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. The court will be concerned to find that an application for increased support isn't just a way for the recipient to improve his or her income and lifestyle. Likewise, the court will be concerned to find that an application for decreased support isn't simply a way for the payor to duck an unpleasant obligation. | Under s. 10 of the Child Support Guidelines, the court can make an award of child support which is less or more 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. The court will be concerned to find that an application for increased support isn't just a way for the recipient to improve his or her income and lifestyle. Likewise, the court will be concerned to find that an application for decreased support isn't simply a way for the payor to duck an unpleasant obligation. | ||
As a result, mere hardship won't do on an undue hardship application. The hardship caused by payment of the table amount must be an undue hardship. According to ''Van Gool v. Van Gool'', a | As a result, mere hardship won't do on an undue hardship application. The hardship caused by payment of the table amount must be an undue hardship. According to ''[Van Gool v. Van Gool http://canlii.ca/t/1f0r2]'', 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 won't cut it. | ||
Section 10 of the Guidelines says this: | Section 10 of the Guidelines says this: | ||
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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 household, this includes all sources of income a household has, including income from the parents' new partners, if any. | 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 household, this includes all sources of income a household has, including income from the parents' new partners, if any. | ||
<!---HIDDEN | |||
==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||
* <span style="color: red;">bulleted list of other pages in this chapter, linked</span> | * <span style="color: red;">bulleted list of other pages in this chapter, linked</span> | ||
END HIDDEN---> | |||
==Page | ==Page resources and links== | ||
===Legislation=== | ===Legislation=== | ||
* | * ''[[Family Law Act]]'' | ||
* ''[[Divorce Act]]'' | |||
* ‘’[http://canlii.ca/t/80mh Federal Child Support Guidelines]’’ | |||
===Links=== | ===Links=== | ||
* | * [http://www.clicklaw.bc.ca/resource/1235 Canadian Bar Association BC Branch: Script on child support] | ||
* | * [http://www.clicklaw.bc.ca/resource/1666 Legal Services Society Family Law Website: What the child support guidelines are and how they work] | ||
* [http://www.clicklaw.bc.ca/resource/1618 Legal Services Society Family Law Website: Child support] | |||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||