Written by: Kevin Heinrichs (View All Posts
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) Published: October 4, 2012
Categorized: Child Support, Legislation Analysis.
An example of the courts using a straight application of the Child Support Guidelines in a high income situation: In Roche v. Chen, 2012 BCSC 1290, the BC Supreme Court reviewed the circumstances under which an interim child support order could depart from the guidelines. Section 4 of the CSG’s allows that,
“[w]here the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is
(a) the amount determined under section 3; or
(b) if the court considers that amount to be inappropriate,
(i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;
(ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and
(iii) the amount, if any, determined under section 7.
The court found that the concept of “condition, means, needs and other circumstances” has been predominantly interpreted, in the case of wealthy families, as indicating “…a more subjective analysis based upon current budget and pre-separation standard of living …”, and a reflection of the children’s reasonable needs. It went on, however, to remind that even in the case of wealthy parent, clear and compelling evidence to depart from the Guideline amounts needs first to be adduced.
In Roche, the court found that the difference between the table amounts and the child’s reasonable needs were “relatively modest” when compared to the payor’s means and the Master ordered full guideline maintenance.
