Our undue hardship support lawyers at MacLean Law often need to review claims for undue hardship by paying spouses related to support payments for their children. This undue hardship support exception was put in the Child Support Guidelines back in 1997 when it first came into force. Winning an undue hardship support case is very difficult and we often use other strategies to seek to obtain credit for our paying clients who are hard pressed financially to pay full child support when they are paying other expenses that benefit the separated family or children. We also aggressively ensure proper support is paid for the children after separation when acting for the receiving spouse.
Our MacLean Law undue hardship support legal team is BC’s largest both in size and number of offices. The team is led by Lorne N MacLean, QC one of Canada’s most experienced and accomplished d family lawyers. When seeking or defending an undue hardship support case the legal experience of your lawyer counts.
The undue hardship support case of Kelly v. Kelly, 2011 BCCA 173 makes it clear the test is quite restrictive and will often result in a rejection of a claim to reduce child support based on difficult financial circumstances. The court will assess whether the paying spouse’s lifestyle is dramatically impacted by a number of factors. Mild financial discomfort will not cut it in a undue hardship support.
Here is how the test works:
[33] A claim for undue hardship under s. 10 of the Guidelines encompasses a two-step analysis. First, the parent applying for relief must demonstrate the undue hardship that will be caused by paying Guidelines support. Section 10(2) sets out a non-exhaustive list of factors that may be considered at this stage, including “an unusually high level of debts” incurred prior to the separation or “to earn a living”, and “unusually high expenses in … exercising access”. This first step has a high threshold. The hardship that must be established is described in the authorities as severe, extreme, improper, unreasonable, or unjustified: Van Gool v. Van Gool (1998), 59 B.C.L.R. (3d) 395, 44 R.F.L. (4th) 314 at paras. 48-51.
[34] If, and only if, this first requirement is met, the second step engages a comparison of the standard of living in each parent’s household under s. 10(3) of the Guidelines, to ensure the payor of child support will not have a higher standard of living than the recipient if a reduction in Guidelines support is made.
[35] If the applicant establishes these two requirements, the court has a discretion to order child support in an amount other than that required by the Guidelines. This is a narrow discretion, however, and should be exercised cautiously to avoid thwarting the Guidelines’objectives of predictability and consistency: Julien D. Payne and Marilyn A. Payne, Child Support Guidelines in Canada (Irwin Law: Toronto, 2009) at 302.
[36] I am persuaded there are two difficulties with the chambers judge’s treatment of the respondent’s claim for undue hardship. First, nothing in his reasons demonstrates that he recognized the stringent threshold the respondent had to meet to establish undue hardship. Second, in finding there was undue hardship, the chambers judge had not yet turned his attention to the issue of spousal support, which not only placed additional income in the respondent’s hands, but also took into account her access costs. Had the chambers judge considered these factors, I am satisfied he would have concluded the respondent failed to meet the high threshold required to establish undue hardship.
To help courts and parents decide whether undue hardship would result if the table values were ordered, subsection 10(2) lists five circumstances that may cause a parent or a child to suffer undue hardship. They are:
- unusually high debts from supporting the family before the parents separated or resulting from earning a living;
- unusually high expenses associated with access to a child;
- a legal duty under a judgment or order to support another individual;
- a legal duty to support a child, other than the child of the marriage, who is under the age of majority or who, owing to illness, disability, or other cause (including education), cannot support himself or herself; or
- a legal duty to support a person who cannot get the necessaries of life due to illness or disability.
Because the list is not exhaustive, other circumstances could give rise to a claim for undue hardship.
Our lawyers can help you argue for or against an undue hardship support claim but you need to meet with us promptly so you know you and your children’s undue hardship support rights. Call us toll free at 1-877-602-9900 to get the help you need today.
