B. Stringent Criterion of Undue Hardship

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 329-330

Page 329

"Undue hardship" implies that section 10 of the Federal Child Support Guidelines imposes substantial limitations on the court’s jurisdiction to deviate from the amount of child support that would otherwise be granted pursuant to the Guidelines. The Guidelines must be applied and the court is given no discretion to "fudge" them, if there is no finding of undue hardship.⁴⁹Parents are expected to exhaust all efforts to increase their incomes and decrease discretionary expenses before consideration can be given to reducing a child support obligation.⁵⁰ Section 10 of the Federal Child Support Guidelines must be interpreted in light of the objectives defined in section 1 of the Guidelines. The objectives of predictability and consistency cannot be achieved if courts frequently deviate from the applicable provincial or territorial table as a result of section 10 applications.⁵¹The objectives of the Federal Child Support Guidelines, which are set out in section 1 of the Guidelines, would be defeated if courts adopted a broad definition of "undue hardship" or if applications under section 10 of the Guidelines became the norm, rather than the exception.⁵²Judicial interpretation of the Guidelines cannot depend on what the court regards as appropriate policy or what is fair.⁵³

The requirement that the hardship be "undue" signifies that a stringent criterion will be applied. Some degree of economic hardship may be the inevitable consequence of separation and divorce. In order to meet the requirements of section 10(1), the hardship must be more than awkward or inconvenient; it must be severe, exceptional, excessive, disproportionate, unwarranted or out of the ordinary, rather than the inevitable consequence of dividing limited resources between two households. The use of the term "undue" implies something more than the hardship that ensues from a lower standard of living after divorce.⁵⁴A court will decline to find undue hardship where a parent can reorganize his financial affairs and thereby alleviate the hardship.⁵⁵The judicial discretion is severely limited, therefore, in average situations.⁵⁶The obligor’s spending habits are irrelevant to the issue of undue hardship but the income earned or the earning capacity of the obligor’s current spouse is relevant to the issue of undue hardship. While the obligor’s current spouse has

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no obligation to support the obligor’s child from a previous relationship, that spouse must contribute...