Circumstances can change over time. That can impact the ability of a parent to pay child support. The principles which govern an “undue hardship” claim are set out in the Federal Child Support Guidelines:

On either spouse's Court 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”.

Circumstances that may cause a spouse or children to suffer undue hardship include the following:

The spouse 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;

  • The spouse has unusually high expenses in relation to exercising access to a child;
  • The spouse has a legal duty under a Judgment, Order or written Separation Contract to support any person;
  • The spouse has a legal duty to support any children, other than any children 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 spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

Despite a determination of undue hardship, a Court Application under those subsection(s) must be denied by the Court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II of the Guidelines.

Where a Court awards a different amount of child support under subsection (1), it may specify, in the Child Support Order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

Where the Court makes a Child Support Order in a different amount under this section, it must record its reasons for doing so.

At GDE FAMILY LAW, we understand the law of “undue hardship” and if the circumstances warrant, can bring a Court Application to provide injunctive relief on your behalf. Relief can also include a “Stay of Enforcement” against the Maintenance Enforcement Program (“M.E.P.”) if they have brought collection proceedings against you. Contact us today to see what your options are; and how we can help you in this difficult time.