March 3, 2020

Can I claim hardship to reduce my child support?

If my expenses are too high, can I reduce my child support by claiming hardship?

Why am I paying child support?

You are paying child support because the other parent earns a lower income than you or you have less than 40% of the parenting time with the children.

How is the amount of child support set?

The federal and provincial governments have set the amounts and rules around child support. Child support is set based on the number of children you have, the amount of time you have them in your care and your income. This is called the “table amount”. You can calculate your table amount at www.mysupportcalculator.ca or look up the federal child support guidelines and make sure you search for the province in which you live. If you parent equally (meaning 50/50 time sharing) with the other parent then you need to know their “table amount” to arrive at a final amount of support.

Will my child support be reduced if I’m in hardship?

Probably not.

You pay child support for the benefit of your children. You have a legal obligation to support your child. Courts consider the table amount to be the minimum amount of child support.

It’s very rare that a court will reduce child support below the table amount. That being said, there is a process to go through if you are in hardship to see if you qualify.

Often a parent will say that they have another child from another partner, and that should reduce their child support in the present case.

Having children with more than one partner is not rare. Paying child support to multiple ex-partners is not rare.

People will then say their living expenses are too high. Living pay cheque to pay cheque is not rare.

Some people will say they live too far away from their child, so they should have reduced support. Moving to another city for work and paying more to see your child is not rare.

Often people don’t see their children, particularly if the child is an older teen. An older child refusing to see you is not rare.

To be able to claim hardship, you need more than just these.

How do I reduce child support?

You need a court order or the agreement of the other parent.

You must prove to a court, or the other parent, that the table amount of support would cause excessive, extreme, unreasonable, unjustified or improper hardship for you and your children. This is “undue hardship”. Regular hardship is not enough.

If you prove undue hardship, you must then prove that the other parent is not worse off than you. To do this you have to compare standards of living. The court will only compare your standards of living after finding undue hardship.

Even if you prove undue hardship and a that you have a lower standard of living, a court is not obligated to reduce your child support. Just because you get though one hoop, does not automatically entitle you to the result you may want.

How do I prove undue hardship?

You must prove one of the following:

  • unusually high debts from supporting the family before separation
  • unusually high debts resulting from earning a living
  • unusually high expenses associated with access to a child
  • a legal duty to support another individual
  • a legal duty to support another child or dependent

Just because you can prove any of these types of undue hardship does not mean the court will reduce your support. The next part is where you have to prove your household has a lower standard than the other household. This is where your entire household comes into play. If you have a new partner, and that person has an income, their income must be disclosed (meaning their income tax return has to be given to your former spouse) and your income and their income are added together. The same thing happens if the other parent of your children has a new partner – they need to give you that person’s income information as well. That is how the standard of living calculations are done.

Do I have to pay full table support if I have a second family?

It’s highly likely the answer is: Yes. Your legal duty to support a second family does not create undue hardship by itself.  If your second family is financially constrained and your new partner chooses not to work, a court will not reduce your child support. You have to have one of the factors above, and then you have to pass the standards of living test.

A court may reduce your payments towards your children’s special expenses such as daycare and extracurricular activities if you have a second family, but your table amount will stay the same except in rare circumstances. You should make sure you have your facts discussed with a lawyer who can assess your situation to see if you qualify before you go ahead with a court process to challenge child support. It could cost you Court Costs if you challenge the child support and you were wrong to do so.

© 2020, FamilyLawAdvisor