Child Support Guidelines: Undue Hardship

Background
The Child Support Guidelines were introduced to provide consistency and predictability in determining the amount of child support to be paid when parents separate. The presumptive tables set out in the guidelines are based on average amounts spent on raising children. To give effect to the concept of consistency and predictability, it is expected that few cases would deviate from the table amount. Therefore, the table should apply to the majority of child support cases.

In some cases, the table amount, may cause undue hardship to either parent or to the child. Courts may award an amount of child support different from the table amount where there is "undue hardship". "Undue hardship" must be proven in evidence. It is more than just difficulty in paying.

The Amount of Child Support Can Be Different From the Guideline Amount
Either parent may apply for consideration of undue hardship. For a parent to succeed, the Court must:
• find that the guideline amount of support would result in undue hardship
• compare the standard of living between the two households and find that the household of the parent applying for consideration has a lower standard of living than the household of the other parent.

Circumstances of Undue Hardship
Undue hardship is not simply a phrase that is interpreted in a vacuum. Circumstances which Courts may consider include:
• the parent has responsibility for an unusually high level of debts incurred to support the parents and their children during cohabitation or to earn a living
• the parent has unusually high expenses in exercising access
• the parent or spouse has a legal duty, under judgment or agreement or otherwise to support any person
• the parent has a legal duty to support another child who is under the age of majority or who is enrolled in a full time course of education
• the parent has a legal duty to support any person who is unable to obtain the necessaries due to illness/ disability.

Standard of Living Comparison
Assume that a parent has passed the first test of proving undue hardship. He or she must now prove that his or her household has a lower standard of living than the household of the other parent.

The guidelines provide for two ways to do this comparison. Firstly, Courts may use the comparison of household standards of living test set out in Schedule II out. It permits the parties to plug in numbers on the schedule and calculate the standards of living of the two families to be compared. In such a comparison, incomes of significant others living in the household, such as boyfriends, girlfriends or new spouses, and children will be taken into account. Secondly, Courts may use any other test. Other tests will require a lot of evidence and a lengthy hearing. The Schedule II standard of living test is an attempt to avoid the courts having to embark upon that kind of process.

Where a Court awards a different amount of child support under the undue hardship test, the Court may specify a reasonable time for the satisfaction of any obligation that causes undue hardship. For example, one of the grounds for undue hardship is that the spouse has a responsibility for an unusually high level of debt reasonably incurred to support the family. A Court could find that debt should be paid off in three years and, at the end of that three-year period, the Court could require the payer to pay support in the table amount.

Highlights of the Legislation Cases
• A party claiming hardship must prove on all of the elements. The onus is on the applicant to make out the case for undue hardship and to present the appropriate. Undue hardship will not be presumed but must be proven
• Either spouse may make an application for a finding of undue hardship to either increase or decrease the presumptive table amount
• There are two essential elements must be proven:
an undue hardship circumstance ; and
a lower household standard of living
The list of circumstances set out in the guidelines that "may cause" undue hardship is not all-inclusive; other circumstances may give rise to a finding of undue hardship
The hardship must be "undue". Courts have resorted to dictionary definitions of "undue", which has been defined as meaning "excessive or disproportionate" or "hard to bear…and … inappropriate, unwarranted and excessive" or "excessive, extreme, improper, unreasonable, unjustified". It is more than awkward or inconvenient
Even if the applicant satisfies both undue hardship and a lower standard of living, Courts retain an overall discretion to determine what deviation, if any, should be made from the table amount of support. This discretion is retained in the opening words of s.10(1) which read, "On either spouse's application, a Court may award an amount of child support that is different from the amount determined …".
Once the Court determines it is appropriate to exercise this discretion, the question becomes how to determine the amount of the increase or decease from the table amount.
Few cases have succeeded in reducing the table amount of support based an "unusually high level of debt". Debt has not been found "unusually high " in relation to the payor's income or assets, or the payment has not produced a hardship result which was "undue".
The debt has to have been incurred prior to the separation for the reasonable support of the family. Debts that are incurred after separation, unless they qualify as a debt incurred to earn a living, will not be taken into consideration.
Courts assume that the cost of exercising access is an ordinary incident of the parents not living together. For an undue hardship claim to succeed for access costs, an applicant must be able to demonstrate "unusually high" expenses flowing from either an unusual distance or an unusual amount of time. Factors Courts have considered include:
the costs of access
the reasons for the costs of access
the income of the parties
choices made by either parent that affect the cost of access and the reasons for those choices
were circumstances beyond the control of the payor or a consensual decision made for the benefit of the child
is access being exercised regularly and will the payment of support at the guideline level interfere with the ability of the access parent to provide an appropriate level of activities and comforts during access visits
Undue hardship will probably be a tough threshold to meet. Although payment of child support is often seen as a financial hardship by the payor and the new family, payment of the guideline amount will rarely be a hardship that is undue in the legal sense.
A parent may claim undue hardship due to a legal duty to support a new child in his or her household. Courts are being asked to grapple with the age-old question of how to fairly and equitably divide family resources among two families. In practical terms, this means children within the spouse's household who are either children of a new relationship or a child for whom the payor stands in the place of a parent. The mere presence of another child in the payor's household does not lead to a finding of undue hardship. Courts will probably not readily deviate from the table amount. Second families, and the associated legal duty to support a child of that family, are not uncommon. The assumption of new obligations may by necessity create a certain degree of economic hardship. That hardship is not necessarily "undue"
If you have questions about any of the issues described in this pamphlet, you should speak to us regarding your individual circumstances. Your choice of legal counsel is a critical and personal decision. The firm you select should be committed to your business and personal needs.

Revision Date: April 13, 2001

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