Section 10(1) of the Federal Child Support Guidelines permits a judge to reduce the amount of child support where the payor spouse would otherwise suffer undue hardship. One of the circumstances set out in s. 10(2) that a court may consider is whether the payor spouse has unusually high expenses associated with exercising access to a child.
We are often asked by clients if they can claim hardship. It is a very difficult threshold to meet.
In a recent BC Court of Appeal case, L.C.T. V. R.K., 2017 BCCA 64, the court provided an analysis of a claim for undue hardship:
[80] The judge set child support at $758 per month on the respondent’s annual income of $50,000 CDN. He assessed the respondent’s monthly costs of access at $200. He found that the respondent’s monthly costs of travelling from his home in Washington to West Vancouver in order to exercise parenting time created a hardship for the respondent and will continue to do so. Accordingly, the judge reduced the child support payable to $558 per month.
[81] Writing for this Court in Kelly v. Kelly, 2011 BCCA 173 at para. 33, Madam Justice Neilson summarized the law on reducing child support payments for a claim of undue hardship (paras. 33–35):
[33] A claim for undue hardship under s. 10 of the Guidelines encompasses a two-step analysis. First, the parent applying for relief must demonstrate the undue hardship that will be caused by paying Guidelines support. Section 10(2) sets out a non-exhaustive list of factors that may be considered at this stage, including “an unusually high level of debts” incurred prior to the separation or “to earn a living”, and “unusually high expenses in … exercising access”. This first step has a high threshold. The hardship that must be established is described in the authorities as severe, extreme, improper, unreasonable, or unjustified: Van Gool v. Van Gool (1998), 59 B.C.L.R. (3d) 395, 44 R.F.L. (4th) 314 at paras. 48-51.
[34] If, and only if, this first requirement is met, the second step engages a comparison of the standard of living in each parent’s household under s. 10(3) of the Guidelines, to ensure the payor of child support will not have a higher standard of living than the recipient if a reduction in Guidelines support is made.
[35] If the applicant establishes these two requirements, the court has a discretion to order child support in an amount other than that required by the Guidelines. This is a narrow discretion, however, and should be exercised cautiously to avoid thwarting the Guidelines’ objectives of predictability and consistency: Julien D. Payne and Marilyn A. Payne, Child Support Guidelines in Canada (Irwin Law: Toronto, 2009) at 302.
[Emphasis added.]
[82] The appellant says the judge erred in reducing the respondent’s child support obligations due to high access costs. She contends that the judge misapplied both steps of the undue hardship analysis. At the first step, the judge found the respondent’s access costs were an undue hardship. The appellant relies on Kelly to assert that undue hardship is a very high threshold to meet and is only established when the hardship is “extreme, improper, unreasonable, or unjustified”. She says that the judge did not find that the respondent’s access costs were “unusually high” and the judge failed to compare the respondent’s costs to his imputed income. The appellant says that the respondent’s access costs comprise approximately 9% of his annual income. She contends that this does not meet the high threshold for undue hardship described in the case law. She also says that the judge failed at the second step of the test to do a proper comparison of the parties’ relative incomes when determining their standards of living.
[83] I am mindful that both steps of the s. 10 analysis involve discretionary decisions. However, I am persuaded that the judge did not adequately recognize the high threshold for a finding of undue hardship. In a very brief analysis, the judge concluded that the respondent should be “compensated” for the costs of accessing his children and that these costs “have created a hardship for him” (at para. 400). The test for undue hardship requires that the hardship be severe and unreasonable. In my view, incurring $200 per month in expenses to travel from Washington to West Vancouver does not rise to that level. I am satisfied that the judge erred in finding undue hardship. It is therefore unnecessary for me to consider the judge’s comparison of the parties’ standards of living at the second step of the analysis. I would therefore increase child support to $758 per month.
For a person to successfully claim hardship, a party must provide evidence in support that the hardship is severe and unreasonable. In this case, $200 per month for travel from Washington to West Vancouver did not reside to that level.
On Appeal, child support was increased from that which was ordered in the Supreme Court decision for these same parties.
Undue hardship is a very high threshold to meet and is only established when the hardship is “extreme, improper, unreasonable, or unjustified”.
Call us if you believe you are facing undue hardship.
Family Law
Lindsay Kenney LLP – Langley Law Firm