Top 5 Reasons to Reduce Child Support (Undue Hardship) are explained by senior Calgary family Lawyer, Peter Graburn, who heads our downtown Calgary family law office.
Child support is the right of the child – both parents have a duty to financially support their dependent children. But for the past 5 years (most agree the downturn started in the summer of 2014), Calgary and the rest of Alberta has suffered economic hard times – reduced O&G activity; reduced employment; reduced incomes. The Child support Guidelines are based on income and if income goes down you need to apply to Court either by agreement or by court application to reduce support to the proper level. Procrastinating is fatal financially to the payor spouse.
But what if a non-custodial parent cannot afford to pay child support as set out by the federal or provincial Child Support Guidelines even on the proper amount based on their income? What if the regulated (ie. “table”) amount of child support set out in the Guidelines cause undue financial hardship on the payor of child support?
5 Reasons to Reduce Calgary Child Support (Undue Hardship) Call 1 877 602 9900
Fortunately, Section 10 of the Guidelines sets out 5 specific circumstances in which child support may be reduced if the payment of the table amount causes undue hardship to the payor:
- Debt – if the paying spouse is responsible for an unusually high level of debt reasonably incurred to support the spouses and their children prior to separation or to earn a living, child support may be temporarily reduced to allow repayment of that debt;
- Access Costs – if the paying spouse has unusually high expenses in exercising access to their child(ren)(particularly in the situation where the custodial parent has moved away from the paying spouse), child support may be reduced to compensate for the cost of travel (ie. mileage or airfare) or accommodation (ie. hotels) necessary to ensure the quality of the parenting time and promote the relationship between parent and child;
- Support of Another Person – if the paying spouse has a legal duty (ie. under a Court Judgment, Order or written Separation Agreement) to support any other person (ie. a spouse from a prior relationship, etc.), child support may be reduced to permit payment to that other person;
- Support of Another Child – if the paying spouse has a legal duty to support a child from another relationship (ie. a biological, adopted or step-child from a previous relationship), child support may be reduced in the current relationship if unusual financial pressure results from having to support children in multiple households from limited financial resources;
- Support of the Ill or Disabled – if the paying spouse has a legal duty to support a person (ie. a former spouse) who is unable to support themselves due to illness or disability, child support may be reduced to permit the support of that dependent adult.
5 Reasons to Reduce Child Support
However, even if you initially meet one or more of 5 Reasons to Reduce Child Support ,Section 10 of the Guidelines also states that even if undue hardship can be established under any of the 5 circumstances described above, child support set out in the tables will not be reduced if, in the Court’s opinion, the standard of living in the payor’s household is higher than that of the recipient’s household (and then sets out a formula test for determining the respective standards of living). This tries to ensure that the support for a child already living in a lower standard of living will not be reduced even further.
Calgary Family Lawyers Can Help On Child Support Reduction Claims
Finally, after determining whether the payor would suffer undue hardship, based on any of the 5 Reasons to Reduce Child Support, from paying the table amount set out in the Guidelines and determining the relative standards of living of the parents, the Court will then determine whether to reduce the child support payable under the Guidelines, and by how much. This is a discretionary remedy – the Courts have broad discretion as to whether to reduce child support or not, depending on the particular circumstances of the families involved. Generally, Courts have been hesitant to vary child support on the basis of undue hardship, interpreting the grounds set out above narrowly and strictly and relying on the general nature of the Guidelines to apply to the average family circumstances. As stated in the B.C. Court of Appeal case of Van Gool vs. Van Gool (1998 CanLII 5650) at para. 51:
“Since the basic tables were designed to be a “floor” for the amount of maintenance payable, rather than a ceiling, it is not surprising that the authorities have held that the threshold for a finding of undue hardship is high. Hardship is not sufficient; the hardship must be undue, that is, exceptional, excessive, or disproportionate in all of the circumstances.”
In a more blunt statement, the Ontario Superior Court of Justice stated in the case of Swift vs. Swift (1998 CanLii 18042) at para. 5:
“Undue hardship is a tough threshold to meet.”
An undue hardship claim regarding child support payable under the table amount set out in the Child Support Guidelines may be made by either the paying or receiving parent. The 5 circumstances set out in the Child Support Guidelines described above are not the only factors to determine if someone would suffer undue hardship by paying/receiving the Guideline amount of support – they are only some of the circumstances that may cause undue hardship, and there may be others. However, the Courts are reluctant to accept other circumstances as evidence of undue hardship, and even to vary child support under these 5 circumstances, except in the most exceptional circumstances, preferring to maintain the predictability, consistency and “fair standard” of the Guideline tables in determining the amount of child support to be paid.
5 Reasons to Reduce Child Support – Don’t Delay Call Now Call 1 877 602 9900
Calgary Child Support Reduction Lawyers explain to their clients the statutory (under Section 10 of the Child Support Guidelines) and other circumstances in which child support may be reduced (or increased), and assist their Clients to weigh the costs and potential benefits of attempting to vary child support payable during the current economic downturn in Alberta.
