C. Circumstances that may Cause Undue Hardship

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 330-333

Page 330

Section 10(2) of the Federal Child Support Guidelines set outs the following non-exhaustive list of circumstances that may constitute "undue hardship" within the meaning of section 10(1) of the Guidelines:

(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 any child, other than a child of the marriage, who is

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause to obtain the necessaries of life; and

(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

Undue hardship may arise from a combination of the circumstances listed under sections 10(2)(a) to (e) of the Federal Child Support Guidelines,⁵⁹or from a combination of circumstances some of which fall within the categories listed while others fall outside.⁶⁰All five grounds in the list of circumstances under section 10(2) of the Guidelines relate in one way or another to the financial costs associated with past or present obligations to children or other persons to whom a spouse has an obligation to support.⁶¹The circumstances listed in section 10(2) of the Guidelines are not exhaustive nor does their existence mandate a conclusion that undue hardship exists.⁶²Merely showing the existence of one or more of the circumstances enunciated in section 10 is not sufficient to meet the requirement of establishing undue hardship. The applicant must go on to show that, given those circumstances, they will suffer undue hardship if they are required to pay child support in accordance with the table.⁶³The proper course is to determine whether the factors in section 10(2) of the Guidelines exist or there are other factors that, in the circumstances of the particular case,

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create undue hardship in that they cause excessive suffering.⁶⁴The examples in section 10(2) of the Guidelines, although not an exhaustive list of circumstances that constitute undue hardship,⁶⁵support the conclusion that Parliament intended to provide sufficient flexibility to deal with special circumstances in an equitable way, without opening the floodgates to applications alleging undue hardship under section 10 of the Guidelines. The examples, while not exhaustive, do provide guidance as to the nature of the circumstances that Parliament intended the courts to consider in dealing with a plea of undue hardship.⁶⁶If the courts are not strict in limiting any expansion to circumstances which are as serious, exceptional or excessive as those listed, the purpose of the Guidelines would be defeated.⁶⁷

Although section 10 of the Federal Child Support Guidelines sets out a non-exhaustive list of situations which may give rise to a finding of undue hardship, the boundaries of undue hardship are financial and the emotional health and well-being of family members cannot trigger a finding of undue hardship.⁶⁸

Some courts have expressly endorsed the application of the ejusdem generis rule in the context of section 10 of the Guidelines.⁶⁹Other courts have asserted that courts are permitted to consider anything that might have an impact upon a determination of undue hardship.⁷⁰In Larkin v. Jamieson,⁷¹for example, personal medical expenses, an ability to have a place to receive the children on access visits, and the cost of furthering one’s education for the purpose of finding suitable employment, were all taken into account to justify a finding of undue hardship. There is nothing in the language of section 10 of the Guidelines to support a rigid application of the ejusdem generis rule.⁷²Undue hardship within the meaning of section 10 of the Federal Child Support Guidelines requires a judicial determination on a case by case basis.⁷³Undue hardship may properly include such...