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Date and Time: March 1, 2021 11:44:00 PM EST

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1. Child Support: Presumptive Amount Deviation

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 Child Support: Presumptive Amount Deviation

Founding Authors: Cheryl Goldhart, Goldhart & Associates and Annie Noa Kenet, Kenet Family Law Professional
Corporation. Updating Authors: Cheryl Goldhart, Surinder Multani, Andrew Vankoughnett and Megan O'Neill,
Goldhart & Associates.

Go to: Child Support: Presumptive Amount Deviation Overview | Undue Hardship Claims | Incomes Over
$150,000

Current as of: 01/26/2021

This practice note sets out the circumstances where deviation from the table amount of child support set out in the
Federal Child Support Guidelines, SOR/97-175, may occur. This includes where the amount determined by the
Guidelines would be inequitable for the spouses or where the spouses have consented to the deviation and the
court agrees that the arrangements are reasonable. In particular, this practice note explains claims for child
support in circumstances where there would be undue hardship and where the payor earns more than $150,000.

Specifically, this practice note provides guidance on the following issues concerning deviating from the table
amount of Child Support:

• Child Support: Presumptive Amount Deviation Overview

1• Undue Hardship Claims
1• Incomes Over $150,000

For more information related to the calculation of child support, see the practice note: Factors in Calculation of
Child Support. For more information on the statutory framework for child support, see the practice note: Child
Support: Statutory Framework. For information on the key elements to consider when making a section 7 expense
claim, see the practice note: Section 7 Expense Claims. For sample court documents seeking table child support
and section 7 expenses, see the precedents: Notice of Motion (Child Support Claim, Table Support and Section 7
Expenses) (Sample), Affidavit (Child Support Claim, Table Support and Section 7 Expenses) (Sample) and
Factum (Law and Argument Section) (Child Support Claim, Table Support and Section 7 Expenses). For a
sample clause seeking an order for set-off table child support in a split custody arrangement, see: Set-Off Table
Child Support Clause (Split Custody). For a sample clause seeking security for support in the form of a life
insurance, see: Security for Support Clause (Life insurance, Irrevocable Beneficiary Designation) . For an Affidavit
form and a Notice of Motion form, see: Affidavit (General) (Form 14A) and Notice of Motion (Form 14).

Child Support: Presumptive Amount Deviation Overview

Although the amounts set out in the Federal Child Support Guidelines are presumptive, ss. 15.1(5) and (7) of the
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), do permit a court to award an amount different from the guidelines. A
deviation from the Federal Child Support Guidelines can only be done:

• Where the court is satisfied that special provisions (either in an order or agreement) directly or indirectly
benefit a child and the Guidelines would be inequitable given these special provisions. The provisions may
be respecting the financial obligations of the spouses, the division of property or other provisions for the
child (Divorce Act, s. 15.1(5)). If the court deviates from the Federal Child Support Guidelines, it must
provide reasons for doing so.
1• Where the spouses have consented to the deviation from the Federal Child Support Guidelines and the
court is satisfied that reasonable arrangements have been made for the support of the child (Divorce Act,

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Child Support: Presumptive Amount Deviation

s. 15.1(7)). In determining whether the arrangements are reasonable, the court will consider the Federal
Child Support Guidelines amount; however, the mere fact that the arrangements are different than the
Guidelines does not make them unreasonable.

Similar provisions are found in ss. 33(12) and (14) of the Family Law Act, R.S.O. 1990, c. F.3.

Special Provisions

An example of special provisions made under s. 15.1(5) of the Divorce Act includes continued occupancy of the
matrimonial home and the resulting postponement of liquidating an interest in the home. This is viewed as a benefit
for the child, and a form of financial support, given the child’s entitlement to remain in the family home, free from
immediate upheaval. See Cloutier v. Cloutier, [1998] O.J. No. 2624 (Gen. Div.).

Another example of a special provision would be that one parent undertakes to pay more of s. 7 of the Federal
Child Support Guidelines expenses. So, for example, if one parent agrees to pay for the entire of private school
tuition and related expenses, a deviation from the guidelines would likely be accepted given that the circumstances
benefit the child.

Undue Hardship Claims

The Section 10 Test

Section 10(1) of the Federal Child Support Guidelines provides the court with a narrow exception to deviate from
the table amount of child support in circumstances where there would be undue hardship. While most spouses will
suffer economic hardship to a certain extent after separation, the threshold for the hardship to be considered
"undue" is very high. "Undue" has been further defined as disproportionate, excessive, or painful suffering (see:
McPhee v. Thomas, [2010] N.S.J. No. 533 (S.C.)). Thus, undue hardship is more likely to be found in low-income
cases.

There is a two-step analysis required under s. 10. If undue hardship is established (step one), the spouse will then
bear the onus of establishing that their household will have a lower standard of living than the other spouse after the
child support is paid (step two) (Federal Child Support Guidelines, s. 10(3)). Once both of these tests are met,
the court then has the discretion as to whether they will vary the amount of support payable based on the
circumstances.

Undue Hardship Factors

Section 10(2) of the Federal Child Support Guidelines, provides the following list of non-exhaustive factors which
offers some insight as to what would be considered "undue hardship":

• the spouse is responsible for a large amount of debt which was reasonably occurred to support their
family prior to separation or to earn a living (Federal Child Support Guidelines, s. 10(2)(a));
1• the spouse has unusually high access expenses (Federal Child Support Guidelines, s. 10(2)(b));
1• the spouse has an obligation under a support Order or separation agreement to support another person
(Federal Child Support Guidelines, s. 10(2)(c));
1• the spouse has a legal obligation to support another child who is either under the age of majority, or over
the age of majority but is unable to obtain the necessaries of life due to illness, disability, or another cause
(Federal Child Support Guidelines, s. 10(2)(d)); and
1• the spouse has a legal obligation to support any person who is unable to obtain the necessaries of life due
to an illness or disability (Federal Child Support Guidelines, s. 10(2)(e)).

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Child Support: Presumptive Amount Deviation

Debt (Section 10(2)(a))

Section 10(2)(a) of the Federal Child Support Guidelines directly states that the debt in question must have been
occurred for the purpose of supporting the family prior to separation or to earn a living. Thus, the court will look for
clear evidence of the debt, and ensure that it can be traced to either of the two factors when performing an undue
hardship analysis (see: Min v. Soe, [2008] O.J. No. 927 (S.C.)). Further, the courts will take the spouse's income
and lifestyle into consideration when determining whether the amount of debt should be considered unreasonable.
For instance, the courts in MacNeil v. MacNeil, [2000] N.W.T.J. No. 4 (S.C.), determined that $45,000 of debt was
not unreasonable where the spouse earned $100,000 per year, with the ability to work overtime.

Access Expenses (Section 10(2)(b))

If one spouse has an unreasonably high amount of expenses directly associated with access to their child, then it is
open to the court to find that there is an undue hardship. Like the other factors, what constitutes unreasonably high
must be determined on a case-by-case basis with consideration of the income level of the payor spouse. In
practice, the court is likely to be more sympathetic if the increased cost of access was caused due to the custodial
parent's geographical move. Conversely, if the non-custodial parent decides to relocate, it is unlikely that undue
hardship will be established despite the increased cost of access. Finally, the courts are likely to be more
sympathetic where the custodial parent has a significantly larger income than the non-custodial parent (see:
Petrocco v. Von Michalofski, [1998] O.J. No. 200 (Gen. Div.)).

Other Support Obligations (Sections 10(2)(c), (d) and (e))

A majority of the case law which is reported under ss. 10(2)(c) and (e) overlaps with s. 10(2)(d) of the Federal Child
Support Guidelines. Having legal obligations to provide support for children from two sets of marriage is a
common occurrence. However, it is important to note that "the mere fact that an applicant's household standard of
living is significantly lower than that of the other spouse, due in part to the applicant's legal duty to another child,
does not automatically create circumstances of undue hardship" (see: Messier v. Baines, [1997] S.J. No. 627
(Q.B.)). The court will perform their analysis with the best interests of all of the children involved. Further, the court
will be reluctant to conclude that there is undue hardship if the spouse is unable to budget and reasonably control
their spending habits (see: Boehm v. Peters, [2012] O.J. No. 816 (C.J.)). It is important to remember that there must
be a legal obligation to pay support to another child. Thus, if a spouse decides to support a child from a second
marriage based on moral obligations, the then undue hardship claim will fail (see: Coutinho v. Coutinho, [2012] O.J.
No. 5430 (C.J.)).

Comparison of Standards of Living

Once it has been established that there is an undue hardship, the final step of the test required that the payor
spouse demonstrate that, after child support payments, their standard of living will be lower than the recipient
spouse (Federal Child Support Guidelines, s. 10(3)). If the test indicates that the payor would have a higher
standard of living than the recipient, then the application for undue hardship will fail.

In calculating the standard of living, s. 10(4) of the Federal Child Support Guidelines, provides that the court has
the discretion to use the household standards of living formula located in Schedule II of the Federal Child Support
Guidelines. While the court has the discretion to vary from the Schedule II formula, it is important to note that the
standard of living should be strictly based on income levels, and not include a valuation of assets (see: Coward v.
Coward, [2008] O.J. No. 375 (S.C.J.), aff’d [2008] O.J. No. 4336 (Div. Ct.)). Further, the income level of each
person in the household, including new spouses, must be considered (see: Locke v. Goulding, [2012] N.J. No. 46
(C.A.)). The test set out in Schedule II of the Federal Child Support Guidelines compares the total disposable
income for the household and the number of individuals relying on that income in each home. Each household's
income is then compared against the low-income measures for their household size, which gives a final ratio.
Whichever parent has the higher ratio has the higher standard of living.

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Child Support: Presumptive Amount Deviation

Requirements Where Undue Hardship Is Made Out

If an application for undue hardship is successful, then the court must record its reasons for deviating from the
presumptive amount (Federal Child Support Guidelines, s. 10(6)). The court may also make the reduction in child
support time-limited, where the reason for undue hardship should resolve in a reasonable time (Federal Child
Support Guidelines, s. 10(5)).

Incomes Over $150,000

Section 4 of the Federal Child Support Guidelines

When the payor spouse earns more than $150,000 per year, s. 4 of the Federal Child Support Guidelines provides
the court discretion to deviate from the appropriate table amount, if the court decides that the table amount of child
support is inappropriate given the circumstances. If the court decides to deviate from the presumptive table
amount, then the starting point for support becomes the table amount assuming the payor spouses' income is
equal to $150,000. For the remainder of the child support, the court has the discretion to order a quantum which
they deem appropriate given the condition, means, needs and other circumstances of the child, as well as the
financial ability of each spouse to contribute towards the support of the child. Further, s. 7 of the Federal Child
Support Guidelines expenses are also to be taken into consideration.

Evidence Required to Deviate from the Child Support Table Amount

Although the Federal Child Support Guidelines provide factors for which the court is supposed to consider — the
condition, means, needs and other circumstances of the child, as well as the financial ability of each spouse to
contribute towards the support of the child — it is required to look at case law to determine the threshold for when
the standard of "inappropriate" is met.

In Francis v. Baker, [1999] S.C.J. No. 52, the Supreme Court of Canada stated that "inappropriate" should be
interpreted broadly, and be defined as "'unsuitable' rather than merely 'inadequate'" (para. 41). Further, the court
stressed that the applicable burden of proof is that "the evidence in its entirety must be sufficient to raise a concern
that the applicable table amount is inappropriate" (para. 43). While the presumptive rule within the guidelines still
applies to the first $150,000 of income, the court has the discretion to vary either above or below the table amount
for all income above the $150,000 threshold. There is a strong presumption that the table amount will continue to
govern, and the onus lies on the party requesting a deviation to establish that the 'inappropriate' threshold has been
met.

While not a requirement, in most cases where the paying parent's income greatly exceeds $150,000, a child
expense budget is created in order to show that the table amount of support is inappropriate. Finally, the court
warned against returning to the pre-Guidelines era where each budgetary expense was individually dissected and
questioned for reasonableness. Instead, the court in Francis v. Baker stated that the budget should be looked at as
a whole, and the threshold for reasonableness is that the "budgeted child expenses are so high as to 'excee[d] the
generous ambit within which reasonable disagreement is possible'" (para. 49).

End of Document

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