E. Unusually High Access Expenses; Payment of Child Support to Non-Custodial Parent

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 335-341

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There are three major aspects of section 10 of the Federal Child Support Guidelines with respect to access costs. First, the court has a discretion to order an amount of child support that differs from the Guidelines figure, but does not have to do so. Second, the access expenses must be "unusually high" in order to support a plea of undue hardship.¹⁰⁸Typically, such expenses occur in situations where the non-primary care parent either spends an unusual amount of time with his children or there is an unusual distance to be travelled between his residence and that of the primary care parent.¹⁰⁹ Third, even where there are unusually high access expenses, the court may order a different amount of child support only upon finding that the obligor would otherwise suffer undue hardship.¹¹⁰Whether access expenses are unusually high is relative to a parent’s financial means¹¹¹and should be

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determined in light of the obligor’s disposable income.¹¹²A claim that undue hardship arises from unusually high access expenses must be dismissed if the obligor’s household would enjoy a higher standard of living than the recipient’s household after payment of the applicable Guidelines amount¹¹³but this may be taken into account in quantifying spousal support.¹¹⁴ The determination of undue hardship must be made in light of present circumstances, not what has occurred in the past.¹¹⁵A finding that access expenses are "unusually high" within the meaning of section 10(2)

(b) of the Federal Child Support Guidelines is fact specific. Some expenses for transportation and food are to be expected; only amounts in excess of basic expenditures can be classified as "unusually high." Courts have considered whether the mode of transportation is reasonable in light of available alternatives, the distance travelled, the frequency of access, the linkage to vacation time for the non-custodial parent, the overall annual cost of access and its relationship to the non-custodial parent’s annual income. An undue hardship claim may succeed by the conjoint operation of sections 10(2)(b) and 10(2)(c) of the Guidelines where high access costs exist in addition to the obligation to support a second family. Given findings of undue hardship and of a lower standard of living in the obligor’s household, the court should not permit the standard of living of the children in each family to diverge too widely. Accommodation may be achieved by disallowing section 7 expenses or by a set-off of access costs against these expenses.¹¹⁶Where the best interests of the children so require, a non-custodial parent may be required to sacrifice some extra-provincial visits so that the appropriate amount of child support can be provided.¹¹⁷The usual expenses incurred by a non-custodial parent in relation to the exercise of access to the child cannot be relied upon for the purpose of establishing a claim of undue hardship within the meaning of section 10(1) of the Federal Child Support Guidelines.¹¹⁸

However, the costs of exercising access may be unusually high as, for example, where there are very heavy travel costs attributable to the distances between the custodial and non-custodial parent’s residences¹¹⁹or where cheap public transportation is unavailable or inappro-

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priate. In such cases, a non-custodial parent who incurs such unusually high expenses may be entitled to claim undue hardship for the purpose of reducing the amount of child support or expenses that would otherwise be paid to the custodial parent.¹²⁰Onerous transportation costs that will be incurred in the exercise of access may clearly warrant an adjustment of the amount of child support where access to the non-custodial parent would otherwise be impossible.¹²¹Travel, food and other expenses that increase the costs of access must be assessed in light of the reasonableness of the non-custodial parent’s decision as to the manner in which access is to be exercised.¹²²Although a court may accept that the cost of access and related travel is substantial, it may not be satisfied on a balance of probabilities that these costs could not be rearranged or reduced to enable the obligor to better meet his child support obligations.¹²³ Additional costs associated with access respecting a disabled child may also be considered in the assessment of child support.¹²⁴Instead of modifying the monthly amount of support payable under the Federal Child Support Guidelines to take account of high access costs, a court may order that the designated amount of child support shall not be payable for any month in which the obligor has access for four consecutive weeks.¹²⁵In determining whether access costs should be factored into the assessment of child support, caution must be exercised so that generous access does not render it impossible for the custodial parent to provide adequately for the children.¹²⁶Increased access costs to the non-custodial parent may be counterbalanced by increased costs to the custodial parent where access is only occasional.¹²⁷High accommodation costs of the non-custodial parent do not take precedence over the child’s basic living expenses incurred by the custodial parent.¹²⁸

The needs of the children do not diminish because the non-custodial parent incurs access costs.¹²⁹A judge may refuse to find that access costs are unusually high after taking into account the distances between communities within the province¹³⁰and the opportunity to share travel costs,¹³¹or the exceptionally high income of the non-custodial parent.¹³²A court may find that the costs of extra-provincial access are not "unusually high" within the meaning of section 10 of the Federal Child Support Guidelines, when compared to typical costs of intra-provincial access. In these circumstances, the court must refuse to order any adjustment of the applicable table amount of child support, but may reduce the contribution of

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the non-custodial parent towards special or extraordinary expenses falling within section 7 of the Guidelines.¹³³A non-custodial spouse or former spouse who voluntarily changes his provincial residence may not be entitled to relief from consequentially high access costs that were clearly foreseeable,¹³⁴but a custodial parent who changes his residence may be granted less child support than that provided under the applicable provincial table, where increased access costs create undue hardship for the non-custodial parent within the meaning of section 10 of the Federal Child Support Guidelines.¹³⁵It is doubtful whether a custodial parent can invoke section 10(2)(b) of the Guidelines in circumstances where her expenses are increased because of the non-custodial parent’s repeated non-compliance with court ordered or consensual access arrangements, although such a claim might be made pursuant to section 10(1) and independently of section 10(2)(b) if the custodial parent or the child thereby suffers undue economic hardship.¹³⁶It remains to be seen whether undue hardship to the custodial parent can arise from a legitimate denial of access to a non-custodial parent or whether either spouse or former spouse can successfully claim undue hardship where unusually high expenses are incurred as a result of supervised access.

The requirements of section 10 of the Federal Child Support Guidelines will not be satisfied where access has rarely, if ever, been exercised,¹³⁷but the claimant may be entitled to reopen the issue upon resumption of access.¹³⁸In the context of section 10(2)(b) of the Federal Child Support Guidelines, it seems reasonable to assume that undue hardship refers to undue financial hardship as distinct from the psychological harm that might result from the non-custodial parent’s failure to accept his or her responsibilities to preserve meaningful contact with a child of the marriage, unless such harm generates health-related expenses such as fall within the meaning of section 7(1)(c) of the Guidelines.

A court cannot assume that undue hardship exists because of allegedly unusually high access expenses where the claimant fails to file relevant financial information.¹³⁹A court may determine whether unusually high access costs have been reasonably incurred, without scrutinizing every penny spent, particularly if the costs are not incurred in the city where the access parent resides.¹⁴⁰High access costs may be found insufficient to trigger a finding of "undue hardship" within the meaning of section 10 of the Federal Child Support Guidelines, but sufficient to

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warrant lowering the monthly instalments payable by the obligor against fixed...