Notoriously hard to win these arguments, but it's not impossible.
As in most things, you don't have to look much farther than the statues and rules to see a framework you must follow to successful argue (or defend against) a particular claim. The Federal Child Support Guidelines give you the framework for a Hardship claim to prevail. Specifically s.10(3) and s.10(4) along with schedule II.
Let's take these hypothetical facts:
Mom's household income is $109,432
Dad's is $30,00
3 Kids
Child Support at $30 and 2 kids is $621 x 12 = $7,452
Mom has primary care so the Low Income Measurement Amount in Schedule II :
Mom's household with 1 adult 3 kids $20,764
Dad's household with 1 adult $10,382
Mom's Household | Dad's Household | |
Income | $109,432 | $30,000 |
Minus tax and deductions | ($34,343) | ($nil) |
Plus Child Support Payable | $7,452 | ($7,452) |
Household income | =$82,541 | =$22,548 |
Low Income measures amount from Schedule II | $20,764 | $10,382 |
Ratio Income / L.I.M.A. (standard of living) | 3.98 | 2.17 |
To get that final ratio income, divide the Low Income Measures Amount from Schedule II by Household income. So 82,541 / 20,764 = 3.98.
The two bottom numbers show a standard of living ratio. The household with the higher ratio, has the higher standard of living. This is your starting point to a claim. If those numbers are close, your claim may not prevail. If they are far apart, you have a chance.
These specific numbers did result in a successful hardship claim by the Dad.
There are all sorts of additional considerations into these numbers:
Premi v. Khodeir and Toews v. Toews : It is not sufficient to rely on a large discrepancy between household income ratios as a circumstance constituting undue hardship. Where the discrepancy forms a large part of the hardship claim, the surrounding facts must be closely examined.
Poirer v. Poirer : No undue hardship results from high access costs.
Balo v. Motlagh : Undue hardship will not be presumed simply because of a payor's legal responsibility for other children or because his or her standard of living is lower than that of the other spouse or partner.
Bedard v. Bedard : The Wages Act states that a man should have at least half his disposable income, as that is defined, for his own support.
Walker v. Rutledge : if a payor parent does not meet the threshold of 40% of the time with the children, he or she cannot base a claim for undue hardship on the ordinary expenses incurred during access visits.
There is a long list of case law and considerations around hardship claims. This post is not meant to be exhaustive, but rather to give you a launching point from the calculations provided within the guidelines.
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