Understanding Undue Hardship and Your Options
If you’re reading this article, you may feel as if the child support you have been asked to pay is not fair. You may be able to claim inability to pay the full child support undue hardship. And in some cases, it isn’t.
Child support is a legal obligation where a parent must provide financial support for their children after separation. One important aspect of this obligation is ensuring timely child support payment. The point of child support is to ensure children continue to receive financial care. It is necessary for their well-being, similar to how it would have been prior to their parents’ separation.
The Family Law Act and the Divorce Act govern child support by virtue of having regulations withing these legislations. Child support calculations are based on the Federal Child Support Guidelines or Provincial Child Support Guidelines and the Child Support Tables. They determine how much individuals have to pay on a case-by-case basis.
Thankfully, the law recognizes that a parent or guardian may experience difficulties paying the amount of child support determined by the Tables and will allow them to pay less.
How do I know if I am experiencing undue hardship? There are three steps:
- The parent making the claim must show that paying the table amount would cause undue hardship for the parent or child.
- The parent claiming undue hardship has to show that his or her household standard of living is lower than that of the other parent
- If the first two steps are cleared, the court decides on a new support amount. Courts may (but do not have to) change the table amount of support.
Step 1: How to Demonstrate Child Support Undue Hardship
There are five circumstances that may cause someone to experience undue hardship:
- Unusually high debts from supporting the family before the parents separated or resulting from earning a living;
- Unusually high expenses associated with access to a child;
- A legal duty under a judgment or order to support another individual;
- A legal duty to support a child, other than the child of the marriage, who is under the age of majority or who, owing to illness, disability, or other cause (including education), cannot support himself or herself; or
- A legal duty to support a person who cannot get the necessities of life due to illness or disability.
Per the Child Support Guidelines, there are other circumstances that may constitute a claim for undue hardship as well:
Five Categories Explained
Debts
In some circumstances, the debt load of a parent may lead to a finding of undue hardship. If this leads to a changed support amount, the court may decide that, when the debt is paid, the amount payable will change again. This allows courts to grant temporary relief. In that case, the parent can pay the debts without requiring another court appearance after the debt is paid.
Access expenses
Access expenses may be unusually high because of large expenses related to access (i.e. flight tickets).
Judgment or agreement to support another individual
A person may already have to support a spouse or children from prior relationships. The table amounts are presumed to apply in these circumstances. However, this section of the Guidelines recognizes that a pre-existing requirement to pay support to others may cause a parent or a child to suffer undue hardship.
Legal duty to support another child
The legal duty to support other children can cause undue hardship if the parent also has to pay the table amount. These other children may be the parent’s biological children, adoptive children, or stepchildren. These commitments may reduce the financial resources available for the children involved. This provision provides financial relief and promotes equitable treatment of all children.
Legal duty to support an ill or disable person A parent may face undue hardship because he or she must support somebody, such as a previous spouse, who is ill or disabled.
Step 2: Comparison of the Household Standards of Living:
If it is found in Step 1 that a parent would suffer undue hardship if a table amount were ordered, the next step is to show that you do not have a higher standard of living than the other parent. This is done by using the Comparison of Household Standards of Living Test:
- Establish the annual income of each person in each household;
- Adjust the annual income of each person in each household by adding or deducting certain amounts, such as deducting any amount of support that a parent has already agreed to pay in a separation agreement (with exceptions);
- Add the amounts of adjusted annual income for all the persons in each household to determine the total household income for each household;
- Determine the applicable low-income measures amount (below which no child support is payable)
- Divide the household income amount by the low-income measures amount to get a household income ratio for each household;
- Compare the household income ratios. The household that has the higher ratio has the higher standard of living.
Step 3: Determination Of The Amount Of Support When Claim Child Support Undue Hardship
Once the first two steps are satisfied, the court has discretion regarding how much support the parent will have to pay. That said, there is a presumption that parents are able to pay the amount listed in the Tables. Ultimately, the undue hardship provision is used sparingly and is far from guaranteed
Conclusion
As you may have gathered, the process for determining whether a parent is experiencing undue hardship can be confusing and difficult. Nevertheless, a claim for undue hardship may be necessary for your financial well-being.
This is why it’s so important to contact a qualified lawyer. Collectively, the team at Progressive Legal Services has years of experience in family law and is capable of fighting for your interests. We welcome you to schedule a 1-hour consultation today.
Written by: Keanin Parish