Written by Matthew Katsionis, Senior Family Lawyer at Crossroads Law, Vancouver
When parents separate or divorce, one of the most significant issues they will face is how to divide their time with their child. Often, one parent will have primary custody of the child, while the other parent will have visitation rights. However, when the non-custodial parent (a parent who does not have sole custody of a child or who has custody a smaller portion of the time) lives far away, the cost of visiting their child can be substantial. In these cases, access costs can become a significant issue.
What are access costs?
Access costs, also known as visitation expenses, refer to the costs associated with the non-custodial parent's visits with their child. These expenses may include travel costs, such as transportation, lodging, and meals, as well as the cost of activities or entertainment while spending time with the child.
Access costs can vary widely depending on the circumstances, such as the distance between the non-custodial parent's home and the child's home, the frequency and duration of the visits, and the activities planned during the visits. In some cases, access costs may be quite significant, particularly if the non-custodial parent lives far away or must travel frequently to visit the child.
Are access costs deducted from child support obligations?
The issue of access costs is often a contentious one because child support payments are intended to cover the basic needs of the child, such as food, shelter, clothing, and medical care. Visitation expenses, on the other hand, are related to the time the non-custodial parent spends with the child. Therefore, access costs are generally not deducted from child support obligations. However, this is usually only done if the visitation expenses are considered extraordinary, such as if the non-custodial parent lives far away from the child and must travel a significant distance to visit.
In the court’s analysis, it must be determined whether the access costs create an undue hardship on the non-custodial parent.
What is Undue Hardship and How Does It Apply?
Undue hardship is a legal claim to determine whether the payor for child support is under such financial stress that they cannot pay the child support as mandated by the Federal Child Support Guidelines. Circumstances that may cause an individual undue hardship are as follows:
(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living
(b) the spouse has unusually high expenses in relation to exercising access to a child
(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority
(ii) the age of majority or over but is unable, by reason of illness, disability, or other cause, to obtain the necessaries of life
In Canada, the legal test for undue hardship in child support is set out in section 10 of the Federal Child Support Guidelines. This section provides that a court may order child support that is different from the amount set out in the guidelines if the court is satisfied that the application of the guidelines would result in undue hardship for either the payor or the recipient of child support.
To establish undue hardship, the payor or recipient must demonstrate that they cannot meet their basic financial obligations or that they would be forced to live at a standard of living that is lower than the standard of living that they would have enjoyed if the child support order were not made. The court may consider a range of factors in assessing whether undue hardship exists, including:
- The financial circumstances and needs of the parties and of the child
- The legal obligations of the parties to support any other person
- The capacity of the parties to earn income
- Any special expenses of the child
- The financial impact on the payor or recipient of the child support order
- Any financial advantages or disadvantages related to the care of the child
- Any hardship that the child support order would cause
- Any other relevant factor
Is Undue Hardship Hard to Prove?
The short answer is, yes. The threshold for proving undue hardship is high, and the court will carefully consider all the evidence presented before making a determination. It's important to note that when the non-custodial parent gets reimbursed for access costs, it essentially results in a reduction of child support for the non-custodial parent. Therefore, access costs can be challenging to obtain.
Overall, access costs can be a significant issue when parents live far away from each other. Visitation expenses, such as transportation, lodging, and meals, can add up quickly, making it difficult for the non-custodial parent to exercise their visitation rights. While the court may order the non-custodial parent to pay a portion of the visitation expenses, the threshold for proving undue hardship is high, and access costs can be challenging to obtain.
If you are struggling with access costs or undue hardship, it’s worthwhile to speak to a family law legal coach to help you understand your case and how to represent yourself with confidence. The experienced team of legal coaches at Coach My Case are ready to help. Call or book online today for your free 20-minute consultation!
