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A HELPING HAND FOR THOSE LESS FORTUNATE

To say that Alberta’s economy is booming seems like an understatement these days, particularly in comparison to many of Canada’s other provinces and territories. We often hear of the plight of those in our neighboring provinces and territories while we thankfully look towards our own resultant wealth from our province’s economic riches and continue on with our work, ensuring continued economic prosperity for our province. Many, and in fact most, Albertans find themselves thriving financially and benefiting from this economic boom however, there still remain the many forgotten and often ignored citizens right here in our own province who suffer economic hardship and do not share equally in the wealth to which so many of us cling.

For those who suffer periods of financial instability or complete financial ruin, be it through the loss of employment, the demise of their business or their inability to continue to work due to physical or mental illness, their new reality often becomes a frightening one. Those who, while dealing with these financial difficulties, find themselves in the midst of a divorce or separation where the issue of child support is raised, or find themselves scrambling to pay child support as ordered by the Courts, often find themselves at a loss for answers. Many require a solution to their dilemma. This dilemma is in and of itself quite basic and can be summed up with the following question in most instances, how do I keep up with my child support obligations while I remain in the unfortunate financial situation in which I now find myself?

The answer to this question can be found at s. 10 of the Federal Child Support Guidelines wherein an undue hardship application may be made.

Essentially, a parent who alleges that maintaining their basic child support payments as ordered under s.3 of the Federal Child Support Guidelines would result in undue hardship may apply under s.10 of the Federal Child Support Guidelines to the Court for a variation of the child support amount payable. 

Needless to say, case law on this issue points to the high threshold and the unwillingness of the courts to depart from the Federal Child Support Guidelines.  Leading cases on this point clearly illustrate the Court’s reluctance to reduce child support payable and state that such applications can only be made in cases where the spouse requesting the Order or a child would suffer “undue hardship”.  The term undue hardship is defined as, hardship that is excessive, extreme, improper, unreasonable or unjustified.  

The British Columbia Courts go on to point out that undue hardship relief is only available to honest, diligent payors.  It is worth noting that even if a parent can prove “undue hardship” under s.10 of the Federal Child Support Guidelines, a Court must deny a request to vary support under s.10, if the household of the spouse claiming undue hardship would, after determining the amount of child support under s.3, have a higher standard of living than the household of the other spouse. Therefore, the Court in such situations would undertake a thorough comparison of household incomes and expenses.

Ultimately, a finding of undue hardship requires a two-step analysis.

First, the Court must be satisfied that circumstances exist which would cause the applicant or a child to suffer undue hardship.  If the Applicant fails at the first step, the inquiry ends.  At this first step, in a payor’s application, the payor’s financial circumstances are relevant.  He or she must demonstrate that the effect of paying the required table amount will create undue hardship on him or her. 

At the second step, even if undue hardship is found at the first step, the Court must deny the application unless it is satisfied that the Applicant’s standard of living is less than that of the other spouse.  The onus of establishing both elements lies on the Applicant at all times, therefore the case to be proven remains that of the payor looking for a reduction in his or her child support payments.

The bottom line then is that, although difficult to achieve, and strictly analyzed by the Courts on a case-by-case basis, undue hardship applications are made and are indeed the savings grace for those in terrible financial straits at times in their lives. This is certainly not intended to be a tool used by those who wish to simply avoid a financial obligation towards their children but rather, as a means of assisting those in our midst who struggle financially to get by, but find themselves unable to succeed for various reasons at certain times in their lives.

Of great importance to note, as you ponder this article, is that child support is indeed the right of the child and it is with great hesitation and a most thorough review of individual circumstances and a balancing of the evidence before it, that the Courts find in favor of the Applicant in undue hardship applications and proceed to awarding a reduction in on-going child support payment amounts or a reduction or elimination of arrears of child support.

By Vita O. Houlihan
May 31, 2006