Section 10 of the Federal Child Support Guidelines confers a discretion on the court to deviate from the normal Guidelines amount of child support in cases of undue hardship. Undue hardship is a tough threshold to meet. Hardship is not sufficient. It must be hardship that is excessive, extreme, improper, unreasonable, or unjustified.184Absent a finding of undue hardship within
the meaning of section 10 of the Federal Child Support Guidelines, bankruptcy does not relieve the obligor of child support obligations.185The undue hardship provisions of section 10 of the Guidelines may be invoked to increase or reduce the amount of child support that would otherwise be payable.186How-ever, courts must be cautious where undue hardship is pleaded by a recipient spouse because of the potential for its abuse as an indirect vehicle for the payment of spousal support or for imposing the child support obligation on other members of the obligor’s household.187The undue hardship provisions of section 10 of the Guidelines are inapplicable to claims for special or extraordinary expenses under section 7 of the Guidelines, being unnecessary to such claims by virtue of the broad discretion conferred on the court by that section.188The judgment of the Newfoundland and Labrador Court of Appeal in Locke v Goulding189provides an excellent review of the judicial discretion to deviate from the presumptive rule under section 3(1) of the Federal Child Support Guidelines in favour of the applicable table amount of child support on the basis of a finding of undue hardship within the meaning of section 10 of the Guidelines in circumstances where the support obligor is required to support children from successive marriages. The following principles have been distilled from the judgment:
1) Section 3(1)(a) of the Guidelines prescribes a presumptive rule in favour of the applicable table amount of child support.
2) A court may deviate from the table amount of child support on the basis of undue hardship if the requirements of section 10 of the Guidelines are satisfied.
3) In the absence of a finding of undue hardship under section 10 of the Guidelines, a court has no jurisdiction to reduce the applicable provincial table amount of support payable to children of the parent’s first marriage by taking account of his or her legal obligation to support children born of a second marriage. Before a court can find undue hardship under section 10(2)(d) of the Guidelines on the basis that a parent must also support the children of a second marriage, there must be cogent and persuasive evidence that undue hardship would result from an order for the table amount of child support to be paid for the children of the first marriage. If a parent remarries and has more children when he or she already has a responsibility to support the children from a previous marriage,
that parent is ordinarily expected to organize his or her affairs so as to honour the pre-existing obligation.
4) A claim of undue hardship under section 10 of the Guidelines should be included in the pleadings and supported by full financial disclosure.
5) The onus of proving undue hardship falls upon the party who invokes section 10 of the Guidelines.
6) A judicial determination under section 10 of the Guidelines presupposes a consideration of all relevant evidence, findings of fact being made, and the application of the criteria set out in that section.
7) An undue hardship analysis involves several steps. The table amount of child support payable under section 3(1) of the Guidelines must first be determined. Then, the evidence in support of the claim for undue hardship must be evaluated in relation to the circumstances listed under section 10(2) of the Guidelines or any other circumstances (as the list is not exhaustive) that reasonably invite consideration of undue hardship. This evaluation must recognize that undue hardship is a high threshold to meet. It goes beyond difficulty or inconvenience; the hardship must be "excessive, extreme, improper, unreasonable, [or] unjustified." Section 10(2) of the Guidelines sets out circumstances that may constitute undue hardship within the meaning of section 10(1) of the Guidelines. Merely showing that one of the circumstances listed in section 10(2) exists is not sufficient to meet the requirement of establishing undue hardship. The applicant must show that the circumstances relied upon will create undue hardship if the table amount of child support is ordered. The claimant must prove that his or her obligations and expenses cannot be reasonably managed so as to enable him or her to pay the table amount of child support and how and why it is that he or she will suffer undue...