Archive for March 2011
Section 16 of the Federal Child Support Guidelines – Calculation of Income for Support Purposes
March 27, 2011 | 
Author This section provides that in determining a person’s income for support purposes, you must look at the total income until line 150 in a person’s Income Tax Return and adjust the income as required by Schedule III to the Guidelines.
The purpose is to examine a person’s current income. The courts still have discretion to consider income non-taxable income when determining a person’s income for support purposes (ie. WSIB income). If a person is receiving tax free income, the amount should be grossed up for tax to take into consideration that it is not taxed.
Although it seems relatively simple to determine a person’s income for support purposes, a person’s income may be subject to adjustments. We would be pleased to assist you in determining your income for support purposes or examine the payor’s income to determine his/her support obligation.
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Section 14 of the Federal Child Support Guidelines – Variation of Support Orders
A court does not encourage the variation of temporary support orders. If you are going to vary an interim Order, there must be a substantial change in circumstances.
A court will vary a previous child support Order where there has been a material change in circumstances for the payor (ie. change in income) or other circumstances in relation to the child. The enactment of the Guidelines themselves creates an absolute right to vary a support Order that was made before the Guidelines were enacted.
Section 14 of the Federal Child Support Guidelines – Variation of Child Support Orders
This section allows for a change in child support if there is a “change in circumstances”, which includes the following:
1. if the support order was made pursuant to the Guidelines, any change that would result in a different Order being made (ie. a change in the income of the payor);
2. if the support order was not made pursuant to the Guidelines, any “change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”;
3. any Orders made before May 1, 1997, when the Guidelines were enacted. Therefore, as held by the Court of Appeal in Bates v. Bates, the enactment of the Guidelines creates an “absolute right to a variation of pre-existing Orders for child support” (p. 226 – Ontario Family Law Practice, 2010)
If you are considering whether or not to vary your previous support Order or Agreement, please contact Fine & Associate and we will be pleased to discuss the issue with you.
Section 10 of the Federal Child Support Guidelines – Undue Hardship
Proving undue Hardship is difficult. The Ontario Superior Court of Justice in Morrone v. Morrone held that it is a “high threshold standard”. The hardship must be “exceptional, excessive, and disproportionate”. The burden of proof is on the payor.
The payor has to provide clear and persuasive evidence. High transportation costs for access or a second family is not sufficient in itself to demonstrate “undue hardship”.
It is clear from the case law that it is unusual for a payor to be successful in claiming that his/her support obligation should be varied due to “undue hardship”.
Notwithstanding, in order to determine if you may have a decent chance in arguing “undue hardship”, it is productive to review your argument and facts with experienced family counsel. Feel free to contact our office to discuss this further.
Section 10 of the Federal Child Support Guidelines – Undue Hardship
This section of the Guidelines provides that a court may “award an amount that is different from the amount determined under the Guidelines, if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship”. Although the Guidelines does not specifically define “undue hardship”, the court may consider that the following circumstances results in “undue hardship”:
- the spouse has an unusually high level of debts that was “reasonably incurred to support the spouses and their children prior to the separation or to earn a living”;
-the spouse has a “legal duty” under an Order, judgment or Agreement to support another person, to support a child (other than the child of the marriage), who is under the age of majority or over the age of majority and is still dependent;
- the spouse has unusually high expenses in relation to exercising access to a child;
However, even if the payor does have circumstances that result in “under hardship”, a court would not order an amount of support that is different than as set out in the Guidelines, if the payor’s household “standard of living” is greater than “standard of living” of the recipient.
Although many payors claim that they cannot pay base support due to “under hardship”, it is my experience that this is a very hard test to meet. The “standard of living” test must be analyzed with the assistance of family law counsel. Please feel free to contact our office and we can discuss this issue.