Daniel Romano, BCL, LL.B., MA and Antonio Ostrica, LL.C., LL.B., LL.M.
“My ex has the kids, I have to pay child support, but I am also struggling to support my senior parents. I want to pay the support but I can’t afford to do both. I am financially torn between my obligations to my children and to my parents.”
Our country has an increasingly senior population and this question will arise more frequently. Both the Civil Code of Quebec and the Canadian Federal Child Support Guidelines allow the parent paying child support (“debtor parent”) to request a reduction of the amount payable based upon the concept of undue hardship.
One typical reason provided for granting an undue hardship order is the cost involved in caring for another person toward whom one has legal obligations such as parents who are ill. A more common claim for undue hardship, and therefore the one most of the case law has focused on, involves the cost of exercising visitation rights when the children live far away from the visiting parent. Since this example sets the rule, we will examine the principles developed in visitation cases in order to apply them to cases of elder care.
The basic rule is that if the cost to visit the child or to have the child visit you, constitutes an excessive financial burden, child support can be reduced in accordance with the Court’s discretion. One of the important guidelines is that these visitation costs must be significantly higher than those that a non-custodian parent would “normally” incur in order to exercise visitation. So, the cost of gas to drive from Laval to Verdun would not qualify, but a regular plane ticket from Vancouver might. Although child support is a matter of public order, meaning it is a child’s right and it cannot be taken away or renounced by the parties, the law does give the Court discretion in reducing the amount of the child support payable if that will help make visitation possible. Facilitating visitation can be a justified ground for reducing child support.
When applying these principles to the undue hardship caused by the obligation to care for a parent, we have many of the same ingredients. It is a societal benefit, and now a legal requirement, that children help to care for their parents when the parents are in need. Facilitating such care can be a justified ground for reducing child support.
The Court’s analysis will be driven by the following questions: How genuine is the need for care? Is the care being offered to the parents reasonable, efficient and cost-effective? Are there more desirable alternatives? Are the costs of such care beyond the ordinary costs one incurs in maintaining relationships between parents and children? What are the financial capabilities of the debtor parent? As with the case of visitation, undue hardship shall be analyzed on a case-by-case basis and Judges will want to look at the global picture before making a decision.
All this theory is well and good, but how much money are we talking about in real numbers?
In a recent case, (July 2019) we represented a parent living in Western Canada who wanted to visit his child in Montreal. Given his income, he should have been paying child support of around $405 per month. But he wanted to be a part of his child’s life as well, and to do this, he was willing to fly to Montreal once a month, rent a hotel and spend the weekend with his child.
The Court took these costs into consideration and reduced his basic child support by $200 per month on the basis of undue hardship.
Although the Court did not grant a dollar-for-dollar reduction, what it did grant certainly helped to both promote visitation and continue child support. We can expect similar results in cases of an obligation to care for a parent.
In a famous biblical case brought before King Solomon, one mother claimed that a child was hers, perhaps in anticipation of the future care and assistance that this child could bring her in her later years, and the other mother was willing to forsake her claim to
that child in order to preserve its well-being.
King Solomon was faced with a “one or the other” type of decision where there was no middle ground possible, unless of course he followed through with his threat of cutting the child in half.
In cases of undue hardship, our modern judges have a slightly easier task. They can compromise, and that is, in fact, the law.