Child Support and Undue Hardship
- 21 September 2017
Child support is crucial for ensuring that children have the financial support they need. However, the cost of supporting a child can be quite expensive. For parents struggling to make their child support payments, it is possible for the amount of child support payments to be reduced if they are creating an undue hardship on the payor.
Child support is determined by the Federal Child Support Guidelines, which as a default presumes that parents will pay a specified amount of support based on their annual income and the province they live in. This type of child support is often called table or base support. There are additional special or extraordinary expenses for a child that a parent might have to pay as well, but these are not presumed by the courts the same way table support is and they are open to more discretion depending on the circumstances of the parties.
WHEN WOULD A PARENT PAY AN AMOUNT DIFFERENT THAN CHILD SUPPORT GUIDELINES?
For parents in circumstances that make it difficult to pay the table amount of support, the only reasons one is allowed to deviate from the specified amount is if they are in one of a few parenting situations, including:
- when there is another spouse in the place of a parent,
- shared or split custody of the children,
- a parent makes more than $150,000 per year, or
- a parent can demonstrate to the court that paying the table amount of support would cause them to suffer undue hardship
HOW WOULD YOU PROVE THAT THERE IS UNDUE HARDSHIP TO PAYING TABLE CHILD SUPPORT?
To successfully establish that there is undue hardship in paying table child support and in order to get a reduction, a two-part test must be passed.
- Provide Facts That Demonstrate Undue Hardship Exists
The first part simply requires a presentation of the facts that there exists undue hardship on the payor when paying the table child support.The Federal Child Support Guidelines list some of the potential circumstances that could lead to undue hardship, they are when:
“(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising access to a child;
(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
(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.”
These are only a few examples and potentially other circumstances making it difficult for a parent to pay the table amount of child support could be used as a basis for establishing undue hardship.
- Prove the Parent Claiming Undue Hardship Would Not Have a Higher Standard of Living
The second part of the test requires showing that the parent claiming undue hardship wouldn’t have a higher standard of living in their household after they paid the child support compared to the household of the recipient parent. If they would have a higher standard of living, they cannot get their child support payments reduced, even if there is a circumstance establishing undue hardship.The standard of living test isn’t just based on the incomes of each parent, but rather a larger overview of their household which includes the income of spouses, inheritances, gifts, assets and expenses.
It is important to remember that once both parts of the test are established, the court is then permitted to use its discretion to reduce the table amount of child support, but that discretion does not mean the court has to choose to do so. Each situation has its own unique set of facts that the court will consider.
The experienced family lawyers at RCMV Law are well versed on Child Support and understand how these calculations and requirements can be complicated, emotional and stressful. Contact us today to get help from one of our expert family lawyers in Calgary.