The father alleged hardship due to significant expenses to exercise parenting time
In a recent decision, the BC Supreme Court refused to reduce a father's child support obligation to zero, rejecting his claim of "undue hardship."
In Hull v. Kornilov, 2024 BCSC 82, the court has concluded a lengthy dispute between parents Kate Hull and Nikita Kornilov over child support for their four-year-old daughter, Mila, born in November 2019. The parents met in 2018 when Hull travelled to Whistler from Australia on a two-year working holiday visa. They had a romantic relationship and lived together but were never formally married.
The dispute began with Hull's relocation to Australia with Mila in January 2020, prompting Kornilov to initiate proceedings under the Hague Convention. The court ultimately allows Hull to relocate Mila to Brisbane, Queensland, Australia. However, this decision came with specific conditions regarding parenting time for Kornilov, who was granted at least one month of sole care per year in British Columbia and additional time during visits to Australia.
The court noted that Hull if allowed to relocate, would not pursue spousal support and was willing to compromise on some aspects of child support. The court acknowledged Hull's right to waive spousal support but emphasized that child support, being the right of the child, could not be waived or negotiated away by either parent.
Kornilov brought the case to the BC Supreme Court, seeking a reduction of his child support obligation to zero on the ground of "undue hardship" under s. 10 of the Federal Child Support Guidelines. Kornilov's claim hinged on the significant expenses associated with exercising parenting time, especially given the geographical distance between Mila's residence in Australia and Kornilov's location in British Columbia.
The court noted that under the Guidelines, even if a parent might suffer undue hardship as a result of unusually high expenses related to parenting time, any consequential application to reduce or eliminate child support must be denied if the support payor's "household" nonetheless has a higher standard of living than the "household" of the other parent.
Furthermore, the court noted that hardship would be "undue" if it is "exceptional," "excessive," or "disproportionate" in all the circumstances. Accordingly, the court emphasized that a contextual assessment is required. The court analyzed the financial details, including travel and accommodation costs, and concluded that Kornilov's claim of undue hardship did not meet the threshold required.
The court found that Kornilov earns much more income than Hull, who works part-time, 20 hours per week on average. The court also noted that Kornilov made no payment towards child support before a consent interim order was made at a judicial case conference.
Ultimately, the court was not convinced that requiring Kornilov to absorb the costs of travel and accommodation related to any parenting time in Australia would cause him actual hardship. The court said Kornilov's claimed hardship was not "extreme, excessive, disproportionate, or unjustified in the circumstances. Accordingly, the court dismissed Kornilov's application for an order reducing his child support obligation to zero.
