A. General Observations

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 323-328

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Section 10(1) of the Federal Child Support Guidelines provides that a court may, on the application of either spouse or former spouse,¹make a child support order in an amount that is different from one that would have been determined in accordance with sections 3 to 5, 8, or 9 of the Guidelines if the court finds that the spouse or former spouse making the application, or a child in respect of whom the application is made, would suffer undue hardship as a result of an order in an amount determined under those sections. Undue hardship may, therefore, be invoked as a justification for deviating from the amount of child support prescribed by the applicable provincial or territorial table, or in cases involving children over the age of majority under section 3(2)(b) of the Guidelines, or for the purpose of qualifying the application of section 4 of the Guidelines involving obligors with income over $150,000, or under section 5 of the Guidelines whereby the support obligation owed to a child of the marriage by a spouse or former spouse who stands in the place of a parent may be affected by a natural or adoptive parent’s child support obligation,²or to qualify the application of section 8 of the Guidelines in cases of split custody where each spouse has the custody of at least one child of the marriage,³or in cases of 40 percent access or shared custody over a period of a year under section 9 of the Guidelines.⁴In deviating from the Guidelines that would be applicable but for undue hardship, the court may, on the application of either spouse or former spouse, set child support at a higher or lower level than would otherwise be payable. The same high threshold test of "undue hardship" applies whether the payor or the payee invokes section 10 of the Guidelines⁵but successful applications by payees are

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rare.⁶Courts should be cautious when a finding of undue hardship is being sought by the recipient spouse because of the potential for abuse and should not permit section 10 to be invoked by the payee as an indirect vehicle for the payment of spousal support or for imposing a child support obligation on other members of the obligor’s household.⁷Economic hardship faced by the payee should be addressed by means of an application for spousal support.⁸Three potential issues arise pursuant to section 10 of the Federal Child Support Guidelines when undue hardship is pleaded, namely

(i) whether undue hardship exists;

(ii) whether a comparison of the standard of living in each household precludes the exercise of judicial discretion; and

(iii) how the court should exercise its discretion.⁹

A claim of undue hardship under section 10 of the Federal Child Support Guidelines should be included in the pleadings or they should be amended to include such a claim before the court makes any such finding.¹⁰A judicial determination under section 10 of the Federal Child Support Guidelines presupposes a series of steps being undertaken, including a consideration of all relevant evidence, findings of fact being made and the application of the criteria set out in that section. These are functions of a trial judge, not of an appellate court; in their absence, an appellate court should remit the matter for reconsideration by the trial court.¹¹It is not possible to determine whether undue hardship will exist if the child support order is limited to the amount fixed by the Guidelines, without first knowing the amount of spousal support, if any, to be ordered. While section 15.3(1) of the Divorce Act requires the court to give priority to child support where there are concurrent applications for spousal and child support, consideration of an application for increased child support based on undue hardship within the meaning of section 10 of the Federal Child Support Guidelines must be deferred until the matter of spousal support has been determined.¹²The amount of spousal support to be paid and received must then be taken into account in comparing the standard of living of the respective households under Schedule II of the Federal Child Support Guidelines for the purpose of determining whether the requirements of section 10(3) of the Guidelines have been satisfied.¹³The undue hardship provisions of section 10 of the Federal Child Support Guidelines create a fairly narrow judicial discretion to deviate from the Guidelines. Undue hardship is

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a tough threshold to meet.¹⁴Furthermore, the use of the word "may" in section 10(1) of the Guidelines clearly demonstrates that any deviation from the Guidelines amount is discretionary, even if the court finds undue hardship and a lower standard of living in the obligor’s household.¹⁵Although there is little judicial guidance on when this residual discretion will be exercised, it is inappropriate to exercise it where the parent alleging undue hardship has wilfully refused to pay child support.¹⁶The presumptive rule under section 3 of the Federal Child Support Guidelines should not be displaced in the absence of specific and cogent evidence why the applicable table amount would cause an "undue hardship."¹⁷Section 10 of the Guidelines is only available where excessively hard living conditions or severe financial consequences would result from the payment of the Guidelines amount.¹⁸A court should refuse to find undue hardship where a parent can reasonably reduce his or her expenses and thereby alleviate hardship.¹⁹In the absence of the circumstances that constitute "undue hardship" under section 10 of the Federal Child Support Guidelines, a court has no residual discretion to lower the applicable table amount of child support under the Guidelines. If a parent has difficulty paying the table amount of child support because of other financial commitments that fall short of constituting "undue hardship" within the meaning of section 10 of the Guidelines, that parent must rearrange his or her financial commitments; the child support obligation takes priority.²⁰In most cases wherein the undue hardship provisions of the Guidelines are met by the obligor, there is only a reduction in the amount of support; the child support obligation is rarely extinguished, although circumstances may arise where this is the appropriate disposition.²¹Where the obligor has a low income, a court may order a modest amount of child support as a "symbolic" gesture to reinforce the parental role,²²but such an order may be deemed unnecessary in light of the attendant circumstances of the particular case.²³In its final report on child support guidelines, the Federal/Provincial/Territorial Family Law Committee suggested that a court would only make a finding of undue hardship in lower income families because non-custodial parents with higher incomes would rarely

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find difficulty in paying the required amount of child support.²⁴It should be borne in mind, however, that it is not only an obligor who can invoke undue hardship for the purpose of reducing child support; the recipient may also invoke undue hardship under section 10 of the Federal Child Support Guidelines for the purpose of increasing the amount of child support. Such latter claims are likely to be rare because of the potential applicability of section 7 being invoked to deal with special or extraordinary expenses incurred with respect to the child.

Undue hardship is objectively ascertained. A bald assertion that the obligor cannot afford to pay does not satisfy the requirements of section 10 of the child support Guidelines and the motives of the applicant who is seeking child support are generally irrelevant.²⁵A court may decline to find undue hardship where it is not satisfied as to the bona fides of a recent arrangement to pay monthly support for a child from the obligor’s previous relationship.²⁶The Federal Child Support Guidelines were designed to provide certainty with respect to the amount of child support to be paid to the parent who is primarily responsible...