Undue Hardship and Child Support

A paying parent may be able to pay an amount less than the prescribed Table amount, if he or she is able to establish that the prescribed child support results in an undue hardship to the paying parent. 

The Courts have repeatedly held that undue hardship must be ‘undue'. In other words, the mere statement that the paying of the child support as prescribed would be financially hard is not sufficient. Usually the hardship must be of a type that is not common or extraordinary, and not self-induced.

Some of the circumstances that may cause a paying parent to suffer undue hardship
include the following:

1. the paying parent has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
2. the paying parent has unusually high expenses in relation to exercising access to a child;
3. the paying parent has a legal duty under a court order or written agreement to support any person;
4. the paying parent has a legal duty to support a child, other than a child of the marital relationship, who is
   1. under the age of majority, or
   2. the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
5. the paying parent has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

It is important to note that the above list is not extensive. The Courts have held that the issue of undue hardship should be decided on a case-by-case basis and is highly factually driven. As a consequence, There is an extensive amount of case law accumulated on this subject, dealing with various facts situations.

In making the claim for undue hardship, the Courts ordinarily require a special calculation to be made and filed, namely, the standard of living calculation. This calculation in essence compares the standard of living as between the two households and the Courts may look to it to establish to proper child support payable.  It is clearly beyond the scope of this brief article to discuss the standard of living calculations, but our firm will be more then happy to discuss this calculation with you and it pertains to your specific case.

We strongly advise that you consult a lawyer on the issue of undue hardship since the rules and the law surrounding it can get quite complicated. You can contact our office to set up a consultation, where you will meet with a lawyer and discuss the circumstances of your particular case.

AUTHOR:

Rick Peticca, LL.B.

Barrister and Solicitor

(c) Shulman Law Firm Professional Corporation