Limited circumstances for veering from child support guidelines
By AdvocateDaily.com Staff
Since their introduction in 1997, the Guidelines have been used to determine the amount of child support due in family law cases.
“It’s a bit of a misnomer because the Guidelines are actually legislated, and the courts are bound to follow them,” says Kristanic, partner with Nathens Siegel LLP. “Generally speaking, there is no veering from them.”
Still, she explains that there are some limited circumstances in which support payors can disburse amounts lower or different than those laid out in the guideline tables, as long as the court approves:
Parents can agree on their own alternative arrangements involving a reduced amount of child support, as long as there is a direct benefit to the child, Kristanic says.
“A parent might pay less than the table amount, but then agrees to cover all of an adult child’s costs of tuition or their other post-secondary expenses,” she says.
Parents can also avoid paying the amount prescribed by the Guidelines if doing so would cause them “undue hardship.”
“It’s a very high threshold to meet, so this kind of order is rare,” Kristanic says, adding that it may occur when parents are already incurring large costs to fulfil access orders.
“If one parent moves out of province or the country, it can impose very high travel costs on the other parent to see the children,” she says.
The support Guidelines draw a distinction for parents whose incomes are more than $150,000 annually. While table amounts are presumptively appropriate under the law, there is also an acknowledgement that they “may be inappropriate” for incomes above $150,000, Kristanic says.
“The theory is that the table amount for payors with very high incomes may lead to an award that exceeds the children’s needs," she says. “An order for child support may be made for the first $150,000 in accordance with the Guidelines, and the court will determine what is appropriate for any income over and above that, taking into consideration the children’s needs and the payor parent’s ability to pay.”
Once children reach the age of majority, which is 18 in Ontario, the Guidelines are less likely to be rigidly applied, Kristanic says.
“Presumptively, the table amount is payable unless it is inappropriate,” she says. “For example, if the children are in school away from home, then the payor parent might be responsible for significant living, tuition and travel costs, which may be a good reason to veer from the table amount.”
Split or shared custody
Kristanic says the Guidelines may not apply in situations of split custody, where both parents have at least one child living with them full time, or in cases of shared custody, where the children spend at least 40 per cent of their time with each parent.
“The reason for that is that the Guidelines are intended to help cover the extra expenses of the parent who is spending most of the time with the children,” she says. “But in split or shared custody arrangements, the time and expenses are shared more equally between the parents.”