Exceptions To The Federal Child Support Guidelines

By Monica McParland
Categories: Blog, Family Law

Under BC Family law a non-custodial parent is required to pay monthly child support to the custodial parent in an amount prescribed by the Federal Child Support Guidelines (“Guidelines”) commensurate with the payor’s income. However there are some exceptions to the general rule which include:

  • if the payor earns more than $150,000 per year
  • if the parents have split or shared custody of the children;
  • if a minor child has become financially independent;
  • if the payor can show undue hardship

This article will discuss these exceptions and how they are applied in practice.

Payors with incomes higher than $150,000

The Guidelines are based on the payor’s income, and the tables only include salaries up to $150,000, beyond which prescribed formulas calculate the amount of child support payable. The current formulas for calculating the monthly amount of child support for annual incomes in excess of $150,000 are as follows:

  • One Child: $1,302 plus 0.78% of income over $150,000
  • Two Children: $2,061 plus 1.22% of income over $150,000
  • Three Children: $2,668 plus 1.56% of income over $150,000
  • Four Children: $3,165 plus 1.85% of income over $150,000
  • Five Children: $3,579 plus 2.09% of income over $150,000
  • Six or More Children: $3,929 plus 2.29% of income over $150,000

Depending on the payor’s income these formulas sometimes generate extremely large child support payments, far exceeding the child’s actual expenses. The court has discretion to make an order in an amount lower than the formulas if appropriate. Before departing from the formulas, the court must find the formula amount would be inappropriate, and then the court will move on to evaluate the circumstances of the individual case, considering the following factors:

1. the financial circumstances of the parties and the actual circumstances of their children;

2. the actual means and needs of the parties and the children; and

3. whether the sheer magnitude of the payments would effectively work as alternative payment of spousal support or as an asset transfer beyond the reasonable purpose of a child support order.

There is a strong presumption in favour of the formulas. Nonetheless a court will depart from the formulas if there is clear and compelling evidence presented that applying the formula amounts would be unfair.

Split custody and shared custody

The primary purpose of child support is to help compensate for some of the expenses incurred in raising children paid by the custodial parent since he or she bears the lion’s share of the direct and indirect costs associated with raising the children.

Split custody is where each parent has primary residency of at least one of the couple’s children. In this situation the court presumes that costs are shared more equally between the parties and the court will apply the “set off” principle. Set off means the amount of child support to be paid is the difference between the amounts that each spouse would otherwise have to pay according to the Guidelines if a child support order were sought against each of the spouses.

Shared custody is where both parents share the children’s time equally, or nearly equally. This has been interpreted to mean that each parent must have care of the children at least 40% of the time. However even if the 40% threshold is reached there is case law which says set off is not automatic. The payor must show how his or her expenses have increased by virtue of the increased time with the children. However In the majority of shared parenting cases the court will indeed order that the child support payable is based on the set off principle.

Independent minor children

Child support is normally payable only for children under 19 years old, or who are over 19 and unable to live independently of their parents. In some rare situations children actually become independent of their parents even before reaching 19 years old. This may occur is if a child has moved away from home and is living independently, perhaps with the assistance of a common law partner, is holding a job, or has had a child of his or her own. If so a payor may be relieved of his or her responsibility to pay child support.

Undue hardship

A court also has discretion to order child support lower than the Guidelines if it can be shown that the payor would otherwise suffer “undue hardship”. This is quite a high threshold. Payors wanting to avail themselves of this exception must convince the court that the hardship would be “exceptional, excessive or disproportionate.” Merely showing the payor having to lower his or her standard of living in order to pay the Guideline amount will not be sufficient. The court will consider the payor’s unusually high debt load, high access costs, legal obligations to support other children and other relevant factors.

If undue hardship is established the court will decide what a reasonable child support order would be after considering the children’s needs and the means of the parents. In undue hardship claims the court will also consider any available household income from the parties’ new partners, if any.

It is often said that the Guidelines are the golden rule in family law but the Courts will depart from them in appropriate circumstances.

For more information on this topic or other family law topics please feel free to contact Monica directly by telephone at (250) 869-1120 or via email mcparland@pushormitchell.com