Child Support: My Ex-Spouse has a New Rich Partner

iStock_000070274351_Small

Allen and Beth were in a committed marriage for five years. During that time they decided to start a family and baby Caroline was born. Unfortunately, the relationship did not work out between Allen and Beth. Although they were on good terms, they decided to get divorced. Despite the divorce, both remain committed to giving Caroline the best life possible, and share custody of Caroline equally. Beth agreed to pay Allen child support since she was making more money than he was at the time.

Now, a few years later, things have changed for both parents. Beth has started a new career and interns as a journalist. Meanwhile, Allen meets Diamond. They fall in love and get married. Beth is happy for Allen, but she is struggling to pay the bills and meet her child support obligations. When Beth is invited over for dinner at Allen and Diamond’s house, she cannot believe how large the house is! That evening, Beth learns that Diamond is making a very comfortable salary as a highly successful investment broker.

Naturally, Beth is frustrated at her situation. She is barely able to afford her child support payments. Allen clearly doesn’t “need” the support payments, but has not said anything about ending them. Beth visits her lawyer for advice. She wants to know whether she can lower her support payments given Allen’s new financial situation.

The Law on Child Support

In keeping with the doctrine of “best interests of the child,” the underlying principle of child support is that every parent owes support to their child. Children need the opportunity to succeed in life, and most Allens and Beths in the world want their Carolines to be healthy and happy.

That said, Allen and Beth – and only Allen and Beth – owe Caroline child support. Under British Columbia and Canadian laws, Diamond is not a parent to Caroline. Her income is not immediately relevant to child support. Therefore, Beth will not succeed in court on an application claiming that her payments should decrease simply because Diamond has deep pockets.

When you Can’t Afford to Pay Child Support?

Nonetheless, Beth may be able to lighten her load of support. She can claim that the payments are causing her “undue hardship.” Under section 10(1) of the Federal Child Support Guidelines (the “Guidelines”), a spouse may apply to alter an award of child support if the spouse paying the support would suffer “undue hardship” as a result of the payments. Therefore, the first step for Beth is to prove that continuing to pay the level of child support she originally agreed to pay has started to cause her “undue hardship.”

If Beth can prove “undue hardship,” the next step is to compare the household standards of living of the two parents. A parent’s “household income” includes the income from new spouses and cohabitating partners. If the parent claiming undue hardship (i.e. Beth) would end up with a higher standard of living than the other parent (i.e. Allen) following a change in child support obligations, then the claim to lower support will be denied. In this sense Diamond’s income becomes relevant to alter support payments.

What is Undue Hardship?

Courts in British Columbia have adapted a test from Van Gool v. Van Gool, 1998 CanLII 5650 (BC CA) to determine “undue hardship”. The hardship faced by the parent making the claim must be:

  • demonstrably severe,
  • extreme,
  • improper,
  • unreasonable, or
  • unjustified given all of the circumstances.

A parent cannot merely argue that the hardship is difficult, they must have evidence that their situation is exceptional or excessive. In Kelly v. Kelly, 2011 BCCA 173 (CanLII), the Court of Appeal called this test “stringent” and found it had a “high threshold.”

The Guidelines provide some guidance for Judges. For example, section 10(2) of the Guidelines says that if a spouse is claiming undue hardship because they have an “unusually high level of debts” related to making payments then a court may find undue hardship exists. Similarly, if the parent is taking care of another child, undue hardship may result.

Beth could look to a case called Dugan v. Dugan, 2001 BCSC 219. In that case, the payor parent had insufficient funds to pay child support and meet his own basic needs. The court found this constituted a circumstance of undue hardship. On the other hand, in Kelly, the debts incurred by the payor were not found to be related to paying child support. Although the payor was in a poor financial situation, she did not meet the high threshold necessary for a finding of undue hardship. Similarly, in B.D.C. v. L.L., 2006 BCPC 479 (CanLII) the payor did not submit sufficient documentation to demonstrate “undue hardship.” The court rejected his claim altogether.

Comparison of Household Incomes

If undue hardship is found, the court compares the standards of living of the parents’ households. In Dugan, the court attempted to equalize the parents’ incomes, but because the payor and payee’s household income levels were so similar, there was little balancing that was done.

In Beth’s case, the circumstances would be quite different. Allen and Diamond’s household income will likely be higher than Beth’s. Therefore, Beth may be able to reduce her payments if the court balances the two household income levels, and finds that Beth’s level is different than Allen’s.

Courts Retain Discretion over Adjusting Child Support

Even if a court finds that Beth’s situation creates undue hardship, and a comparison of the family incomes demonstrates inequality, the court can still deny the application. A court will always consider what is fair given the circumstances, and what is in the best interests of the children. A court is free to decide, for example, that Caroline would be better served by having Beth continue to make payments, rather than placing the onus on Diamond to support a child that she is not obligated to support under the Family Law Act.

Finding the Right Solutions

It may be frustrating to give your ex-spouse child support payments while you struggle to make ends meet. Remember that there is always an onus on parents to support their children. It is best to approach these issues from a perspective that can reward your child or children with the best outcome.

Going to court and arguing for a finding of undue hardship has its advantages and its disadvantages. The most important thing for Beth to determine is what she wants to do. If she merely wants some relief making payments, she may be able to avoid a costly and complex court battle by discussing the issue and the options with a lawyer, including the use of alternative dispute mechanisms.

Lawyers at Watson Goepel have experience in mediation, negotiation and litigation. We would be happy to hear from you and talk to you about your options for how to take care of the Caroline in your life.

By Micah Goldberg, Articled Student