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Should You Have to Pay Support if You Live Below the Poverty Line?

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Should You Have to Pay Support if You Live Below the Poverty Line?

Courts have to make difficult decisions on a daily (and even hourly) basis, and must do so against the backdrop of some compelling and heart-wrenching human stories. When determining child support in particular, courts must always keep the best interests of the children in mind, but must also give consideration to the plight of parents who may be struggling financially – whether genuinely, or through situations of their own making.

This was precisely the situation in the recent decision in Kelly v. Kelly. There, the parents separated after five years of marriage. The father was content to allow the mother to have custody, but wanted access to their child. He had not seen the child in more than three years, had been struggling with some addictions, and had not paid child support since the separation. As a result, the mother had to declare bankruptcy, and had to give up the matrimonial home.

While it was clear that the father had an obligation to pay child support, the court had to come up with a reasonable assessment of his income. It decided to approach the matter from a per-year perspective: Since the father had been trained as journeyman electrician, the court found for most of the year 2012 he could have earned up to $60,000 per year. (And in fact, over a span of a few months in the summer he had taken some odd jobs as an electrician at this rate, but had been fired from them). The court therefore imputed income to him at this level, and ordered support accordingly for a specified period.

However, after October 1, 2012, the father’s income consisted solely of money he received under the Ontario Disability Support Plan (ODSP); this income totalled about $12,500 per year and fell substantially below the poverty line. And because it reflected his ability to pay, the court also took into account the father’s own stated financial needs and expenses, which hovered around $1,000 a month.

As a result, starting in October of 2013, the father was ordered to pay $48 in monthly support, which was the amount dictated by the Child Support Guideline for a person at that income level.
In arriving at this Guidelines-mandated outcome the court appeared nonetheless to have some trepidations. It observed:

Unfortunately, the Child Support Guidelines afford the court very little discretion to award less than the table amount for payors with income below the poverty line unless there is a claim for hardship or other factors are present that are not relevant in this case. Here, the father has not appeared; nor has he pleaded hardship in his Answer. Although significantly impoverished while on OSDP, the Child Support Guidelines dictate that the father is still liable to pay child support, in that his income exceeds the table amount. Liability for child support starts with an annual income of $10,900. Whether demonstrably impoverished individuals should be liable for child support which deepens their poverty is a question of policy for Parliament.

Should parents living at poverty-line levels of income be required to pay support at all? What are your thoughts?

For the full text of the decision, see:

Kelly v. Kelly (2013), 2013 CarswellOnt 14984, 2013 ONSC 6733, H.M. Pierce R.S.J. (Ont. S.C.J.) [Ontario]  http://canlii.ca/t/g1m88

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.