What is Undue hardship? A term used in family law to describe a situation where a payor parent cannot pay the full table amount of child support. Claims for Undue Hardship are made under s. 10 of the Federal Child Support Guidelines. In making an Undue Hardship claim, a payor parent must establish to the Court that there is a reason why they cannot pay the full table amount of support. These claims are very complex and require certain evidence to be successful.
Factors Considered in Undue Hardship Claims
Income
The Court will consider the payor's parent's income when determining whether an Undue Hardship claim is valid.
Expenses
The Court will also consider certain expenses of the payor parent' when determining whether an Undue Hardship claim is valid. This may include exercising parenting time with their child/children.
Other Financial Obligations
The Court will consider any other financial obligations, such as debts, that the payor parent may have when determining whether an Undue Hardship claim is valid.
How to Make an Undue Hardship Claim
Evidence Required
Making an Undue Hardship claim requires certain evidence to be successful. This includes financial statements, tax returns, and other documentation that supports the payor's parent's claim.
The burden of Proof
The burden of proof remains with the payor parent to establish why they should not be required to pay the full table amount of child support. The Court does not look at these claims lightly, and the payor parent must provide compelling evidence to support their claim.
Legal Representation
Given the complexity of Undue Hardship claims, it is highly recommended that payor parents seek legal representation when making such a claim. An experienced family law lawyer can help navigate the complexities of the law and ensure that the payor's parent's rights are protected.
Deviation From Federal Child Support Guidelines
Unique Circumstances
Claims for Undue Hardship allow the Court to deviate from the Federal Child Support Guidelines and the Federal Child Support Tables. This can give rise to some unique circumstances when the child they pay support for lives in another province or when a payor parent has another child they are supporting.
Court Discretion
The Court has discretion when making decisions about Undue Hardship claims. They will consider a variety of factors when determining whether to grant a claim, including the payor's parent's income, expenses, and other financial obligations.
Legal Representation
Given the complexity of Undue Hardship claims, it is highly recommended that payor parents seek legal representation when making such a claim. An experienced family law lawyer can help navigate the complexities of the law and ensure that the payor's parent's rights are protected.
What Circumstances Can Lead To an Undue Hardship Claim?
But what happens when a payor parent has another child they are supporting? Or when the child they pay support for lives in another province? This can give rise to some unique circumstances when the Court can deviate from the Federal Child Support Guidelines and the Federal Child Support Tables. This concept is referred to as “Undue Hardship”.
Claims for Undue Hardship are made under s. 10 of the Federal Child Support Guidelines. In making such a claim, a payor parent must establish to the Court there is a reason why they cannot pay the full table amount of support. These claims are very complex and require certain evidence to be successful. The Court does not look at these claims lightly, and the burden remains with the payor parent to establish why they should not be required to pay the full table amount of child support. It is not as simple as fitting in one of the categories outlined in s. 10 of the Federal Child Support Guidelines, you must also establish that these circumstances are causing you undue hardship.
If you are interested in pursuing a claim for Undue Hardship, a consultation with one of our family lawyers can assist you in navigating this process. Contact us or fill out the form below to book a consultation.
