G. Legal Duty To Support Any Child Other Than a Child of the Marriage; Sequential Families

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 342-346

Page 342

Undue hardship may arise pursuant to section 10(2)(d) of the Federal Child Support Guidelines where a spouse or former spouse has a legal,¹⁶⁰as distinct from a moral,¹⁶¹duty to support a child, other than a child of the marriage, who is under the age of provincial majority, or who is the age of majority or over but unable, by reason of illness, disability, or other cause, to obtain the necessaries of life.¹⁶²A legal duty to support a child of the marriage falls outside the ambit of section 10(2)(d) of the Guidelines and precludes a finding of undue hardship thereunder.¹⁶³Section 10(2)(d), unlike section 10(2)(c), does not require that the legal duty of support arise pursuant to a court order or written separation agreement. It may arise pursuant to provincial statute even in the absence of any court order or agreement as, for example, where the obligor has formed a new relationship and owes a duty of support to children born of that relationship or to whom the obligor stands in the place of a parent as a consequence of his or her marital or cohabitational relationship.¹⁶⁴A support obligation owed to a child other than a "child of the marriage" within the meaning of the Divorce Act may be pertinent to the obligor’s invoking the "undue hardship" provisions of section 10 of the Federal Child Support Guidelines but, in that event, the fact that the father shares the cost of raising that child with another adult person must also be considered.¹⁶⁵The court should not deviate from the applicable provincial or territorial table amount under the Federal Child Support Guidelines where the obligor has a demonstrable ability to pay that amount, notwithstanding his or her obligation to support another child.¹⁶⁶An

obligor may be called upon to more effectively manage his or her financial affairs so as to accord precedence to an order for child support over debts and non-necessities.¹⁶⁷In determining whether a legal obligation to support a child generates undue hardship where the child is an adult pursuing post-secondary education, relevant considerations include:

(i) the obligor’s substantial income;

(ii) the availability of other financial assistance for the child;

(iii) the adult child’s ability to contribute to his or her own support through part-time employment; and

(iv) the lack of objective evidence of any financial hardship.¹⁶⁸

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A court should be cautious in accepting differentials between the cost of living in different communities as a factor that might cause undue hardship, because any cost of living adjustment could undermine the objectives set out in section 1 of the Federal Child Support Guidelines or render the Guidelines almost meaningless in such jurisdictions as the Northwest Territories.¹⁶⁹Sequential families and the associated legal duty to support the children of such families are not uncommon. The assumption of second family obligations may inevitably create a certain degree of economic hardship but that hardship is not necessarily "undue."¹⁷⁰

The payment of child support is often perceived as a financial hardship by the payor and the new family, but their subjective perceptions do not satisfy the test of undue hardship. Awkwardness or inconvenience or the need to interfere with the existing financial planning strategy in the new payor household will not suffice. Undue hardship is not to be equated with financial difficulty, budgetary cutbacks, restraints or financial re-evaluations. Undue hardship signifies that there is hardship that is excessive, extreme, disproportionate, improper, unreasonable or unjustified.¹⁷¹A parent, who pleads undue hardship on the basis of a co-existing obligation to support the child of a second family, must prove that the hardship is different from that normally experienced by parents of second families.¹⁷²In

the case of a second family, the obligor should provide clear and cogent evidence, not conjecture or speculation, from which an inference can reasonably be drawn that the children in the second family would suffer significant deprivation if the table amount was ordered for the children of the first relationship. "Deprivation" relates to food, clothing, shelter, or some medical or other health need.¹⁷³ The fact that the obligor’s household standard of living is lower than that of the spouse or former spouse, due in part to his or her legal duty to support another child, does not automatically create circumstances of undue hardship.¹⁷⁴

Courts are not required, therefore, to equalize the rights of half-siblings from sequential families. Absent undue hardship as defined above, the "first in time prevails" as between the children of sequential families. The above stringent criteria were applied by the Nova Scotia Court of Appeal in Gaetz v. Gaetz.¹⁷⁵In a commentary on that judgment, Professor

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D.A. Rollie Thompson concludes that "some appeal courts have seriously overshot the mark in establishing a ‘tough’ test for undue hardship, to the point of causing serious individual injustice by their adherence to the Table amounts."¹⁷⁶Professor Thompson contends that his review of some 260 reported undue hardship cases since March 1997 provides little or no indication that a more flexible judicial approach to undue hardship would open the floodgates to doubtful claims.¹⁷⁷However, the low incidence of undue hardship cases is, no doubt, attributable at least in part to the stringent criteria imposed in early appellate decisions under the Guidelines.¹⁷⁸Whether a more flexible approach in these cases would have opened the floodgates to "undue hardship"claims is a matter for speculation. Be that as it may, Professor Thompson is undoubtedly correct in asserting that Gaetz v. Gaetz is questionable insofar as it interprets section 10(2) of the Guidelines as providing an exhaustive list of circumstances that constitute "undue hardship," despite the "open-ended language" of that section. A close examination of the trial and appellate judgments in Gaetz v. Gaetz emphasizes that legal practitioners and judges would do well to bear in mind that a non-custodial parent, who has been ordered to pay child support, is not thereby disqualified from obtaining an order for periodic spousal support.¹⁷⁹A claim of undue hardship arising out of the cost of a second family is not necessarily restricted to the circumstances identified in section 10(2)(d) of the Federal Child Support Guidelines, but a general reference to the overall expense of a new household will not suffice to support a claim of undue hardship in...