It’s not easy to achieve, but under the right circumstances, you can pay less child support.
All joking aside, I hear this question all the time. How do I pay less child support?
What is the law on child support?
Child support is the right of the child. This means that both parents have an obligation to support their child(ren) regardless of who is the payor and who is the recipient.
Basic child support is calculated based on gross incomes and the proportionate sharing of agreed-upon section 7 expenses. Want to learn how child support is calculated and recalculated? Please read my article entitled Child Support Calculation and Recalculation found under our Blog on this website. We also have articles on Maintenance Enforcement.
You may also want to read the Government of Canada’s publication entitled “Child Support: Step by Step“.
Because child support is the child(ren)’s right, the Court is very reluctant to accept child support arrangements or amounts that are less than the guideline calculations direct. But you guessed it!! The Court will accept arrangements where more money is paid than directed by the guideline calculation. The Courts want to ensure a child(ren) are adequately supported financially.
What is a deviation in child support?
Child support deviation is the term used when a payor pays less child support than what the Federal Child Support Guidelines (“FCSG”) direct. If there exists a child support deviation, the Court will need an explanation of why a lower child support amount is paid.
Some of the accepted reasons for deviating are:
(a) Increased costs associated with access to your child(ren): In circumstances where the children live far away, the payor may have travel costs, lodging costs, food costs, etc. The Court will consider a small deduction of any proven costs against the child support payable under the FCSG.
(b) Keeping and paying down joint debt: If there is a joint debt payable upon separation or divorce and one person takes on repayment responsibilities, this may be set off against child support owing. It is a difficult argument to defend in Court but is a possible scenario. This set off argument is harder to make if the person repaying the debt also keeps an asset associated with the debt. I am referring more to unsecured debt repayment such as credit card debt or personal loan debt.
(c) Legal obligations to support another dependent: This rarely refers to supporting second families. In Alberta, a case entitled “Hanmore v. Hanmore, 1999 ABQB 301 (CanLII)” talks about payors being financially responsible for their first set of children and knowing that previous support obligations existed before having had more children.
If you were legally obligated by contract or another such document to pay for an elderly parent or disabled sibling and this legal obligation existed during the marriage or relationship, then a Court may consider a small deduction in the child support owed by the payor.
(d) Prolonged loss of employment or earnings: This is a change in circumstance that leads to the recalculation of child support. It is not an argument to deviate from the child support payable under the FCSG. It is important to exchange financial information, yearly, so you can adjust the child support payable.
What is undue hardship?
This is the legal argument used to deviate from the child support payable under the FCSG. Essentially, a payor advises the Court that he or she cannot make the child support payment according to the FCSG and typically falls under the circumstances listed above in points (a) to (d).
Because undue hardship has a two-part legal test, undue hardship is very difficult to prove.
The first part of the test requires the payor to show a reason why he or she cannot afford to pay the child support amount directed by the FCSG. Most payors can provide solid reasons for this and financial records to confirm he or she cannot afford to pay.
It’s the second part of the test which creates difficulties. A payor must show that his or her household standard of living is less than the recipient’s household standard of living. The household standard of living test incorporates all incomes earned in payor’s household and in the recipient’s household. This means roommate’s incomes, rental income and new partner/new spouse’s incomes.
If you want to work on calculations for the household standard of living comparison see worksheet 3 of the Child Support: Step by Step resource I refer to above.
If a payor is successful, some significant deductions from the child support payable can be granted by the Court. I think payors should obtain legal advice before they attempt an undue hardship argument as it is a complicated legal argument.
What evidence leads to paying less child support?
Payors and recipients should always exchange income tax returns (T1 General), notices of assessment and last year’s pay stub showing year to date gross earnings.
If a payor or recipient is self-employed, then additional documents such as the business’ financial records or bank statements may be used to ascertain what the gross earnings are. Please note if there are no section 7 expenses and if the recipient has primary care of the child(ren), then the recipient’s income does not need to be exchanged as it is not used in the calculation of child support.
A payor may also need to show financial documents related to his or her joint debt repayment. This will also include documents showing the recipient is also responsible for this debt.
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Author: Ning Ramos
Barrister and Solicitor