UNDUE HARDSHIP: Deviating from the Federal Child Support Guidelines
By Helen M.J. Banks |
A claim for undue hardship is a method by which payors of child support can obtain permission from a court to pay less than the Guideline amount for section 3 child support. Similarly, recipients of child support can make a claim for undue hardship to force a payor to pay more than the Guideline amount for section 3 child support.
Circumstances that will be considered in a claim for undue hardship include but are not limited to:
(a) That the applicant has responsibility for an unusually high level of debts reasonably incurred to support the family prior to the separation or in order to earn a living.
(b) That the applicant has unusually high expenses in relation to exercising access to the children.
(c) That the applicant has a legal duty to support other people.
(d) That the applicant has a legal duty to support a child, other than a child of the marriage, who is:
(i) under age 18, or
(ii) 18 years old or older but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life.
(e) That the applicant has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability (for example a former partner from a different relationship).
We most commonly see claims for undue hardship where an access parent incurs increased access costs due to residing a significant distance from the children. If a parent must incur airfare and hotel costs, this can be a basis for a claim for undue hardship as courts do not want financial hardship to impact children’s bond with the access parent, which is inevitable if the access parent is unable to see the children as often as he or she would if cost were not a factor.
When a claim for undue hardship is advanced, everyone in each household must produce information in order for the court to compare the standards of living in each household. In the event that the court determines that the household of the applicant claiming undue hardship would have a higher standard of living than the other household, the applicant’s claim for undue hardship will be denied.
“Household” is defined in Schedule II of the Federal Child Support Guidelines as follows:
Household means a spouse and any of the following persons residing with the spouse:
(a) any person who has a legal duty to support the spouse or whom the spouse has a legal duty to support;
(b) any person who shares living expenses with the spouse or from whom the spouse otherwise receives an economic benefit as a result of living with that person, if the court considers it reasonable for that person to be considered part of the household; and
(c) any child whom the spouse or the person described in paragraph (a) or (b) has a legal duty to support.
The Comparison of Household Standards of Living Test is set out in Schedule II of the Federal Child Support Guidelines. Completing the test should be the first step for anyone considering making a claim for undue hardship.
In the recent Alberta case of SJG v. TAG 2016 ABQB 684, Mr. G brought an application to reduce his child support on the basis of undue hardship as Mrs. G was living in a new residence (apparently provided by her parents), whereas he resided in a one-bedroom apartment that was inadequate to properly accommodate the children. He had also accrued significant debt to his lawyer during the legal proceedings to date.
In dismissing Mr. G’s claim for undue hardship, the Court cited the following reasons:
(a) Mr. G’s evidence fell far short of establishing any of the factors for undue hardship contemplated in s. 10(2) of the Federal Child Support Guidelines.
(b) Mr. G earned $130,000 per year. It would be extraordinary for someone earning that level of income to establish sufficient hardship to reduce his child support obligations, even if the standard of living was higher in the recipient’s household.
(c) Courts do not recognize the legal costs incurred by one party fighting the other party as a basis to increase or decrease child support. Legal expenses are each party’s individual burden, unless the Court determines that one of the parties should bear some or all of the other party’s costs.
(d) Hardship was not made out by the fact that Mrs. G’s parents are voluntarily providing assistance to their adult child while the Mr. G had no similar support from his family. Child support is the parents’ responsibility, not the grandparents’.
Undue hardship claims are complicated court applications to make without advanced legal knowledge. If you are considering making an application for undue hardship, we recommend that you contact our Family Law Department for assistance.