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After a divorce, it can be challenging to decide where the children will reside. If one parent wants to move away with the children, it can be challenging for the other parent to make regular visits. Decisions concerning where the children will live if they move away are called mobility decisions. The court can also make these decisions, considering the other parent’s ability to visit the child and the plan to facilitate their parenting time or access. In some cases, the costs for regular visits can be very high for this parent. As they are the non-primary parent, meaning that the child primarily lives with the other parent, they also likely need to pay child support to the primary parent. Given high access costs, the non-primary parent may seek to reduce their child support to offset these costs.

This post will discuss when child support can be reduced if a visiting parent’s access costs are high. We will discuss a court’s different approaches and a preliminary analysis of whether reducing costs would be appropriate. We will discuss a case example, Szakaly v Smith, 2024 ABCJ 128, to illustrate how this analysis is conducted in a case. This post will provide important takeaways for parents seeking to understand child support obligations when a child has moved away from the non-primary parent, and access costs to facilitate visits are high.

What are access costs?

In cases where the child has moved away from the primary parent, the non-primary parent may incur significant access costs to exercise their parenting time. For example, if the parties live far away, the visiting parent must pay for transportation and accommodation for their visits with the child.

Access costs can also include the time it takes to exercise access. For example, a parent may need to travel a long distance by car to visit the child and may need to take additional time off. This may reduce their overall pay or opportunities for overtime pay.

What approaches can the court take to alleviate high access costs for a parent?

When a visiting parent needs to pay significant amounts to visit the child, the court can step in to alleviate these costs. Several approaches are available, including undue hardship applications, reducing or eliminating section 7 expenses, or incidental costs to parenting and access orders.

Before the court takes one or a combination of these approaches, a preliminary analysis of the access costs needs to be conducted. These costs need to be real, necessary, reasonable, and significant.

Undue Hardship Applications

Child support could be reduced due to significant access costs through an undue hardship application. Generally, since the child lives with the primary parent, the non-primary parent must pay child support. The amount of child support largely depends on the payor’s income. The base amount of child support is set out as a table amount in the Federal Child Support Guidelines, which are adjusted based on the province. Generally, the court has limited discretion to change this amount unless the payor would experience undue hardship when paying the monthly amount of child support.

Undue hardship can include situations where the parent has unusually high expenses concerning exercising access to the child. However, there is a high standard for establishing undue hardship. In particular, the hardship must be more than awkward or inconvenient. The hardship experienced must be exceptional, disproportionate, or excessive. It is also the responsibility of the party claiming undue hardship to prove it with clear evidence. It is not enough for a party to state exaggerated access costs as a basis for undue hardship.

Section 7 expense analysis

Section 7 is additional expenses to support the child beyond the base table amount. These are extraordinary costs beyond basic care costs. Generally, each party is expected to pay for these expenses in proportion to their income. There is mixed case law on whether section 7 extraordinary expenses can be reduced to offset access costs. However, the court has found they have more discretion over section 7 expenses than the base table amount of child support. As in the case below, the court may reduce section 7 expenses for a parent if they need to pay significant access costs to visit the child.

Incidental Costs to Parenting and Access Orders

When the court is making a parenting and access order, they may specify possible reductions in child support obligations due to high access costs. These can include reductions in the base amount or section 7 expenses if appropriate.

Visiting Parent Not Required to Pay Section 7 Extraordinary Expenses Due to High Access Costs

In the Szakaly case, the children lived primarily with their mother in Nanaimo, BC. They had moved from Calgary, Alberta, where the father continued to reside. Both of the children were very young, and both parties and the court established that it was in the children’s best interests to have frequent contact with the father and their paternal grandparents.

The father claimed that due to his high access costs for these visits, his child support payments should be reduced by 30 per cent. The mother claimed that child support should not be reduced until she returned to work when a 20 per cent reduction would be appropriate.

The court found that the father’s access costs to visit the children were unusually high, at approximately $7,500 per month. Neither party provided receipts, however, and the court questioned how the father was able to pay for all of his expenses given his monthly income of $3800.

The court found that while it had limited discretion to change the base table amount of child support, there was more discretion to reduce section 7 extraordinary expenses. The court ordered the father to continue paying the full amount of base child support, with no section 7 expenses paid by the father.

Contact Mincher Koeman Family Lawyers for Assistance with Child Support

Child support is the child’s right, but this may be more complex if the visiting parent has significant access costs after a relocation. Any reductions to child support are highly dependent on the circumstances of the case, so you should speak with our family law lawyers at Mincher Koeman, who are experienced in assisting parents with child support claims, including after a relocation. Our Calgary family law lawyers are dedicated to finding the best resolution for you and your children in your divorce case. 

To book a consultation, please contact us online or by phone at 403-910-3000

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