Often clients will come in seeking a reduction in the amount of child support because they simply cannot afford the amount the court has ordered. The reason they cannot afford this amount is because of the other bills and debt obligations they have incurred prior to the order for the child support being made.
Unfortunately, there is little that can be done when this is the reason one can’t afford to pay their child support obligation. As many people are aware, child support in Canada has been set out in the child support guidelines. The amount is based strictly on the person who is required to pay income, provided it is not a shared custody or split custody situation. The amount the payor is required to pay varies from province to province. This is a result of the differences between the income tax rates of the provinces, not because of the higher costs of living in some provinces.
The only way the courts will vary from the guidelines is if the payor can show that if that amount is ordered, they will suffer “undue hardship.” This is a very difficult test to meet, as it is much more than simply saying you cannot afford to pay the amount ordered.
First, you have to show that you meet one of the enumerated or listed reasons as to why you are suffering undue hardship if the table amount of child support was to be awarded. These reasons include:
• The payor has unusually high expenses in relation to exercising access to the child for which the child support is awarded (such as flights overseas for a person earning little more than minimum wage);
• That the payor has a legal duty by court order or written separation agreement to support another person; and
• That the payor has a legal duty to support a child other than the child for which child support is being awarded (this does not mean your children with a new spouse — it must be an obligation under a court order or separation agreement).
But that’s not the end of the test. Once you have proven that you meet one of the listed reasons for suffering undue hardship, you then have to meet the second and probably the most difficult step in the test.
This step is to show that the award of child support based on the guidelines would result in you having a lower standard of living than the household of the other parent. If your standard of living is higher than the other parent, your application for a lower amount of child support must be dismissed by the court.
The reason most people fail at showing their standard of living is lower than the other parent’s is because when the court determines what your standard of living is, they must take into consideration the incomes of all members of your household (including new spouses). So, while your new spouse’s income has no bearing on the amount of child support you are to pay when using the tables in the guidelines, it does affect your ability to claim undue hardship. As a result of this stringent test, claims for undue hardship are almost never successful in court.
» Breena Murray is a lawyer with Paterson, Patterson, Wyman and Abel, with offices in Brandon, Neepawa and Virden.
Republished from the Brandon Sun print edition August 11, 2012