The Federal Child Support Guidelines (“FCSG”) govern the payment of child support across Canada. The tables attached to the FCSG set out the amount payable (often called the “Table amount”) by the parent who does not have the child(ren) in their primary care to the parent who does have the child(ren) in their primary care. The information required to determine that amount is the number of children, the province or territory where the paying parent lives, and the payor parent’s before-tax annual income.
There are some limited exceptions to the Table amount where the court may consider a different amount, for instance where the child(ren) are the age of majority or over and the court considers the Table amount to be inappropriate. Key word = may.
One exception is set out in section 10 of the FCSG and is called “undue hardship.” The provision reads:
10(1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
The FCSG then outlines what circumstances may cause undue hardship and how the court is to determine whether there is undue hardship. That word may again!
The circumstances listed in section 10(2) include:
(a) Unusually high levels of debt reasonably incurred to support the family prior to the separation or to earn a living;
(b) Unusually high expenses in relation to exercising access to a child;
(c) A legal duty under a judgment, order or written separation agreement to support any person;
(d) A legal duty to support a child, other than a child of the marriage, who is
(i) Under the age of majority, or
(ii) The age of majority or over but is unable, by reason of illness, disability or other cause, to support themselves;
(e) The spouse has a legal duty to support any person who is unable to support themselves due to an illness or disability.
This is not a complete list of circumstances that can lead to undue hardship and other causes can be considered.
However, even if an applicant can claim undue hardship under one of these circumstances, the court must deny the application if the household of the spouse claiming undue hardship would have a higher standard of living than the household of the other spouse after child support was paid. This requires the court to compare the standard of living in both households.
And finally, even if undue hardship is found and child support lower than the Table amount is ordered, the court may order that once that situation is resolved (for example, once the debts are paid), child support will be increased again.
The undue hardship provision of the FCSG is meant to be used very rarely so it can be difficult to make a successful undue hardship application. This is on purpose. The FCSG is based on the presumption that payor parents can afford the Table amount because it is based on reasonable amounts in average family circumstances. In fact, even where the applicant has proven that they have a circumstance that leads them to suffer undue hardship AND their household standard of living is lower than the other spouse, the court still has discretion to refuse to vary the Table amount.
For this reason, potential applicants should consult with a lawyer to determine the costs and benefits of bringing an undue hardship application and whether there are potential solutions to the problem outside of a court application.