Putting Children's Interest First - Federal-Provincial-Territorial Consultations on Custody and Access and Child Support

Part 2: Child Support (continued)

IMPACT OF ACCESS COSTS ON CHILD SUPPORT AMOUNTS

There are two types of costs parents have, related to access:

  • costs related to the time a parent has with the children; and
  • expenses the parent has, to exercise access.

Costs for access time tend to reflect the amount of time a parent spends with the children. When the parent who pays child support spends a lot of time with the children, he or she might have significant costs for this access. On the other hand, when the paying parent spends little or no time with the children, the receiving parent may have financial and hidden costs on top of his or her regular costs. Examples of hidden costs include loss of career-advancement opportunities and reduced ability to earn overtime pay.

Access expenses are usually large lump-sum amounts the paying parent has to pay to exercise access. An example of these expenses is airfare for the parent or the children when the two parents do not live near one another.

When parents have unusually high access costs (either related to time or large expenses), the guidelines provide a way that parents can try to accommodate them. When such costs, combined with the amount of support the parent pays according to the child support tables, could create hardship for either parent or for the children, a parent can use a section of the child support guidelines to get the child support amount changed.

The parent claiming undue hardship has to prove to a judge that the hardship he or she would suffer is significant (undue) and that his or her household's standard of living is not higher than that of the other parent's household. If the parent's claim is successful, the judge might then lower the child support amount to take into account the paying parent's unusually high access costs.

Parents, judges and others have said that there are problems with the undue-hardship process. In particular, the calculations the parents have to do to evaluate their standard of living are complicated. It is also hard to assign a dollar amount to elements of a person's standard of living.

Given these challenges, some people have said that there needs to be another, simpler way to take access costs into account when deciding on child support.

Other people, who feel that the undue-hardship process is not the best way to deal with access costs, see problems for the receiving parent when the paying parent exercises very little or no access. These people say that the undue-hardship process does nothing to help receiving parents who may have extra expenses related to the children because the other parent does not have the children very often. The undue-hardship process is not effective for these parents because, although case law recognizes that receiving parents may make an undue-hardship claim, most have been unsuccessful, again because it is difficult to determine the exact dollar amount of the expenses in question.

Still other people have said that undue hardship should not be changed to automatically decrease the child support amount when the paying parent exercises access often, since the receiving parent's expenses may not decrease. An increase in a paying parent's access time may have little or no impact on the receiving parent's major expenses, such as housing.

Judges have dealt with access costs in ways other than those in the guidelines. In some cases, judges have shared these costs between the parents as part of the access order. That way, judges do not change the child support amount, and the parents can decide between themselves whether the receiving parent's share of the access costs will be paid by deducting it from the child support amount, or some other way.

Costs Related to Access Time

The child support guidelines recognize that the paying parent's costs related to access time are offset by the receiving parent's direct and hidden costs. As a result, judges do not tend to adjust the child support amount to accommodate most parents' access costs.

However, some parents who care for children close to 40 percent of the time over a year believe they should not have to pay the full child support amount. Others believe that reducing child support amounts according to access time could lead to more litigation.

If the guidelines did include another approach, there is the question of what that approach would be. Any approach that includes a formula would necessarily require trade-offs between simplicity and fairness. It may also be difficult to determine how much time a parent must care for the children before the amount of child support can be changed, given the fact that the guidelines already recognize that a paying parent will spend time with the children. It is difficult to implement perfect mathematical solutions in a simple, user-friendly manner. A complex formula may appear to be so complicated that judges will not use it at all, or it may result in incorrect calculations. On the other hand, simpler mathematics may lead to less accurate results.

Below are questions about whether the child support guidelines should provide a different way to take unusually high or unusually low access costs into account when determining the child support amount.

Questions

Should the child support guidelines be changed to introduce a new way to take into account the costs related to unusually high access time when determining child support?

  • Yes
  • No

Why?

If yes, how should the child support amount be calculated?

  • It should be left to the judge’s discretion.
  • There should be a formula. The judge should have no discretion.
  • There should be a formula to help the judge, but he or she should still have discretion whether or not to change the child support amount.
  • Other (please explain).

Why?

Should the child support guidelines be changed to introduce a new way to take into account the costs related to unusually low access time when determining child support?

  • Yes
  • No

Why?

If yes, how should the child support amount be calculated?

  • It should be left to the judge’s discretion.
  • There should be a formula. The judge should have no discretion.
  • There should be a formula to help the judge, but he or she should still have discretion whether or not to change the child support amount.
  • Other (please explain).

Why?

Access Expenses

There are varying opinions on whether child support amounts should take into account the fact that the paying parent may have high access expenses, such as airfare and hotel bills.

For example, some people say that, especially in lowincome situations, children’s basic needs are of first importance. Parents must be able to meet their children’s basic expenses for food and housing. Only then should a judge be able to consider changing the child support amount to take into account high access expenses.

Another issue related to high access expenses is that paying parents must deal with them in the undue hardship section of the child support guidelines, which makes it difficult for them to obtain relief. Because the hardship must be undue and because the standard of living of the paying parent’s household must be lower than that of the receiving parent’s household, it is very difficult to get a judge to agree to reduce the child support amount to reflect high access expenses. Faced with these major expenses, paying parents might be able to exercise access only rarely, or not at all.

Questions

Should the child support guidelines provide a way, other than the undue-hardship process, to calculate the child support amount when there are high access expenses, or should judges be allowed to decide on an amount they feel is appropriate?

  • The guidelines should provide a way to calculate child support in these situations.

Please describe in your feedback booklet a method you think would be effective and why it would work.

  • Judges should be allowed to decide on an amount.

Why?

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