Greene v. Greene 2010 BCCA 595 – December 29, 2010
The BC Court of Appeal considered an appeal of a BC child support order, in part on the basis that BC child access costs had been taken into account in determining the amount of BC child support to be paid.
After the BC separation, the mother had moved with the children from the Lower Mainland to Vernon BC. A BC Child Support agreement was reached at that time to lower the Vancouver BC child support to half of the Table amount to take into account the father’s expenses to exercise access in Vernon BC. Several years later, after seeking financial disclosure, the mother sought an increase in BC child support. An increase in British Columbia child support was granted on the issue of BC access costs, but not to the full Child Support Guidelines Table amount for the father’s current income, or retroactively to the date the mother had sought.
On the issue of BC child access costs being taken into account in setting child support other than the Table amount, the Court of Appeal noted that only one section of the Child Support Guidelines, being section 10 “undue hardship claims, expressly provided for unusually high access costs as a basis for child support in an amount different from the Table, and then only where the relative household income of the payor is less than that of the payee.
This suggests that the drafters of the Guidelines intended to draw the line where the effect of the payment of access expenses is to reduce the payor to a standard of living less than that of the payee, and that otherwise access costs are not to be considered a basis for deviation from the Table amount under any other section of the Guidelines.
The section 7 special or extraordinary expenses provisions of the Child Support Guidelines cannot be used as a basis for sharing access costs, but access costs could be taken into account in relations to the means of a payor parent in assessing the reasonableness of other expenses to which his or her contribution is sought.
Although the Divorce Act expressly permits the Court to award an amount different from the Guidelines if the court is satisfied that special provisions in an order or written agreement have been made for the benefit of a child, it was found that there was insufficient information on the financial circumstances at the time of the consent order to support Mr. Greene’s argument that the reduced child support payable was a special provision for the benefit of the children, nor was he entitled to assume that his child support payments would never be more than half of the table amount at any particular time. Both his income and the children’s basic and other needs had increased since that time.
The Court notes that it is open to parents to reach their own agreements with respect to sharing access costs, as long as those agreements do not short-change the children with respect to child support. The view was expressed that such adjustments should not be at the expense of child support, but on some other basis such as a set off against spousal support or an adjustment to property division.
Access costs have been allocated between parents in mobility cases under s. 16(6) of the Divorce Act where, as a term, condition or restriction of a custody and access order, access costs are to be shared or borne entirely by the parent who wishes to move, even where the payor would not meet the undue hardship provisions of the Child Support Guidelines. The Court in Greene left as an open question with significant implications whether the use of s. 16(6) survived the enactment of the Child Support Guidelines, as the claim of the payor in this case was not made under this section of the Divorce Act.
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