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Undue Hardship: what is it and do I qualify?

A decision released today by the Supreme Court of British Columbia sets out a useful summary of the law of undue hardship.

What is Undue Hardship?

Undue hardship has a few legal definitions and meanings.

In family law undue hardship refers to something a parent could claim under the Federal Child Support Guidelines (Section 10) in certain cases.  Section 10 of the Guidelines sets out some circumstances that might lead to a finding of undue hardship, as follows:

  • the parent has responsibility for an unusually high level of debts reasonably incurred to support the parents and their children prior to the separation or to earn a living;
  • the parent has unusually high expenses in relation to exercising access to a child;
  • the parent has a legal duty under a judgment, order or written separation agreement to support any person;
  • the parent has a legal duty to support a child, other than a child of the marriage, who is: under the age of majority, or the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
  • the parent has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

According to Justice Canada’s website:

In some situations, the amount of child support set in the child support tables, combined with other circumstances, could create undue hardship for you, for the other parent, or for a child. In those situations, a different child support amount could be determined.

 What is the test for undue hardship?

The British Columbia Court of Appeal explained the two part test in a 1993 decision as follows:

The undue hardship test under s. 10 is two-fold. The spouse applying for relief under this section must prove that payment of the table amounts would cause undue hardship under s. 10(1) having regard to the criteria in s. 10(2). If this test is met, the applicant must go on to establish that, if required to pay the amount of maintenance otherwise payable under the guideline table, the standard of living of his or her household would be lower than that of the household of the other spouse. If this dual test is met, the court has a discretion to award a different amount of maintenance than that otherwise required under the Guidelines.

Part 1: What is evidence of undue hardship

Master McCallum, as he then was, gave some examples of what might constitute hardship in a 1999 Supreme Court of British Columbia decision:

Evidence of hardship might include evidence of having to move from one’s accommodation, give up a vehicle, operate on a restricted diet and so forth.

Part 2: Standard of living comparison

The standard of living comparison  reminds me of the lyrics in Gold Digger:

I know somebody payin child support for one of his kids
His baby momma’s car and crib is bigger than his
You will see him on TV Any Given Sunday
Win the Superbowl and drive off in a Hyundai

I am reminded of the Gold Digger lyrics for two reasons (neither of which being that I like the message in the song).  They are:

  1. The examples given would not likely, on their own, lead to a successful undue hardship claim.  As the British Columbia Court of Appeal has said (adopting an Ontario judgment): “Undue hardship is a tough threshold”; and
  2. Undue hardship is one area of family law that does invite parties to compare the standard of living in their respective households.   The Guidelines state that an application for undue hardship must be denied if it is of the opinion of the court that the household of the spouse who claims undue hardship would (after determining the amount of child support) have a higher standard of living than the household of the other spouse.  Basically, if the gentleman described by Kanye did have a bigger house and car than the mother of his child, he would fail in his hardship claim.

The  British Columbia Supreme Court decision released today not only provides a useful review of the law surrounding undue hardship – it is also interesting because it adopts language from Saskatchewan Court of Queen’s Bench decision Jackson v. Holloway, stating  a party “has an obligation and is expected to organize his … affairs with due regard to that obligation.”

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