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Federal Child Support Guidelines - Section 10(2)

February 3, 2022

British Columbia

,

Canada

Issue

Can a court consider circumstances other than those listed in section 10(2) of the Federal Child Support Guidelines when determining undue hardship?

Conclusion

Section 10(2) of the Federal Child Support Guidelines sets out the circumstances that may cause undue hardship to the payor parent, including the following:

(a) 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;

(b) the spouse has unusually high expenses in relation to exercising parenting time with a child;

(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has 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 obtain the necessaries of life; and

(e) 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. ( Federal Child Support Guidelines)

Section 10(2) of the Act sets out a non‑exhaustive list of qualifying circumstances that may cause undue hardship and include such things as unusually high level of debts reasonably incurred to support the spouses and their children prior to separation or to earn a living. (S.C. v. M.N.)

Section 10 of the Guidelines is a high threshold to meet. Mere economic difficulty in meeting the burden does not suffice. The hardship must be severe, extreme, improper, unreasonable, or unjustified. (J.L.L. v. J.G.M.)

In Chung v. Chung, the payor parent claimed undue hardship. During one 2-year period, he had declared bankruptcy, was on government assistance and was unable to work due to personal health issues. Bruce J. noted that the court would have accepted a claim of undue hardship for this period had the appropriate application come before it at that time (but it hadn't).

In H.(S.) v. H.(M.), 2001 BCPC 340 (CanLII) and 2001 BCPC 260 (CanLII), the mother was found to have established a case of undue hardship, in particular because of her increased debts and bankruptcy, moving expenses and car repair payments. She needed help with her basic expesens. There was no suggestion that the debts were incurred prior to separation.

In L.C.T. v. R.K., Weatherill J. held that the respondent has been struggling financially, intending on making an assignment into bankruptcy because of credit card debt of over $40,000 that he could not pay. He has borrowed heavily from friends and family to fund the litigation. He was operating a fledgling business that had yet to produce income sufficient to pay his debts. To order that he pay arrears of child support in these circumstances would cause undue hardship and would be inappropriate.

In Cesarone v. Knox, the respondent sought relief from the full amount of child support payable on the basis of undue hardship arising out of certain ongoing and future medical expenses. She conceded that a payor’s own medical circumstances did not fit under any of the enumerated subparagraphs of s. 10(2), but argued that the list of factors is not exhaustive and that they are analogous. However, the respondent’s evidence fell short of establishing that she has incurred, or was going to be incurring, expenses of the magnitude that have been claimed by her in her affidavits and, as such, the respondent has failed to establish that she would suffer hardship if she were required to pay child support in accordance with the Guidelines. Master Wilson concluded, therefore, that it was not necessary to consider whether medical expenses incurred by a payor were analogous to the circumstances listed in section 10(2) for the purposes of a claim for undue hardship, nor whether any hardship would be ‘undue'.

Law

Section 10(2) of the Federal Child Support Guidelines, SOR/97-175 sets out the circumstances that may cause undue hardship to the payor parent:

Undue hardship

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.

Circumstances that may cause undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:

(a) 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;

(b) the spouse has unusually high expenses in relation to exercising parenting time with a child;

(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has 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 obtain the necessaries of life; and

(e) 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.

In S.C. v. M.N., 2015 BCSC 2550 (CanLII), Kent J. held that section 10(2) of the Act sets out a non‑exhaustive list of qualifying circumstances that may cause undue hardship and include such things as unusually high level of debts reasonably incurred to support the spouses and their children prior to separation or to earn a living.

[18] The matter does not end there, however. Section 10 of the Guidelines permits the court to reduce the amount of child support payable if payment of the full amount would otherwise the cause the payor parent to suffer undue hardship. Section 10(2) of the Act sets out a non‑exhaustive list of qualifying circumstances that may cause such undue hardship and include such things as unusually high level of debts reasonably incurred to support the spouses and their children prior to separation or to earn a living.

In Cesarone v. Knox, 2016 BCSC 53 (CanLII), the respondent sought relief from the full amount of child support payable on the basis of undue hardship arising out of certain ongoing and future medical expenses. She conceded that a payor’s own medical circumstances did not fit under any of the enumerated subparagraphs of s. 10(2), but argued that the list of factors is not exhaustive and that they are analogous. However, the respondent’s evidence fell short of establishing that she has incurred, or was going to be incurring, expenses of the magnitude that have been claimed by her in her affidavits and, as such, the respondent has failed to establish that she would suffer hardship if she were required to pay child support in accordance with the Guidelines. Master Wilson concluded, therefore, that it was not necessary to consider whether medical expenses incurred by a payor were analogous to the circumstances listed in section 10(2) for the purposes of a claim for undue hardship, nor whether any hardship would be ‘undue':

[3] The respondent acknowledges that child support is payable, but denies that she has rental income and seeks relief from the full amount of child support payable under the Federal Child Support Guidelines (“Guidelines”) on the basis of undue hardship arising out of certain ongoing and future medical expenses. The respondent also seeks retroactive child support for the period October 2013 to December 2014, when the parties shared parenting responsibilities.

[...]

[13] In support of her claim for undue hardship, the respondent says that she has been on every medication available in Canada and having received no relief, has pursued and continues to pursue alternative treatments, both in Canada and in the U.S. Although trained and employed as a nurse, the respondent has been unable to work since August 2013. She was hospitalized from September 20 to December 5, 2013, and initially received medical and employment insurance in the amount of $6,210 for the period August to November 23, 2013, followed by CPP disability benefits in the amount of $702.80. She also received and continues to receive long-term disability payments through Great West Life, initially in the amount of $1,528.60 per month, which amount has apparently since increased marginally.

[...]

[16] The respondent says that her ongoing and anticipated medical expenses give rise to undue hardship. She concedes that a payor’s own medical circumstances do not fit under any of the enumerated subparagraphs of s. 10(2), but argues that the list of factors is not exhaustive and that they are analogous.

[...]

[21] It is far from clear that Ms. Knox is going to be accepted for an appointment at the Mayo Clinic, as it would appear that this would be dependent upon whether the doctors at the Mayo Clinic believe that their services could benefit the respondent. As such, the respondent’s evidence falls short of establishing that she has incurred, or is going to be incurring, expenses of the magnitude that have been claimed by her in her affidavits and, as such, the respondent has failed to establish that she will suffer hardship if she is required to pay child support in accordance with the Guidelines.

[22] I therefore do not need to consider whether medical expenses incurred by a payor are analogous to the circumstances listed in section 10(2) for the purposes of a claim for undue hardship, nor indeed whether any hardship would be ‘undue’.

In Chung v. Chung, 2007 BCSC 1082 (CanLII), the payor parent claimed undue hardship. During one 2-year period, he had declared bankruptcy, was on government assistance and was unable to work due to personal health issues. Bruce J. noted that the court would have accepted a claim of undue hardship for this period had the appropriate application come before it at that time (but it hadn't):

[20] Mr. Chung deposes that he is currently unemployed and receiving social assistance in the amount of $560 per month. Living with his sister in Richmond, Mr. Chung pays $350 rent. Mr. Chung also deposes that with his limited English language skills, the hiatus since his last employment as a newspaper delivery driver, and his mental health problems, he has been unable to secure a job despite extensive efforts on his part. Attached to his affidavit are several employment applications that apparently have been rejected by the prospective employers. Age does not appear to be a limiting factor because Mr. Chung is only in his mid 30’s.

[...]

[26] Mr. Chung argues that he did not receive notice of the application for child support that resulted in the order of Mr. Justice Brooke. He submits that had the court known of the separation agreement, his health problems, his debt situation, and his unemployment, the order would not have been made. Based upon the evidence now submitted to the court, Mr. Chung argues that his income does not warrant an order for child support and, further, that he meets the test for undue hardship under s. 10 of the Guidelines. Accordingly, Mr. Chung asks the court to cancel the order for child support and any arrears that have accrued since the February 2005 Order.

[...]

[34] Turning to the grounds for a variation of child support prospectively, as well as the question of cancelling arrears, I find it necessary to review the history of Mr. Chung’s financial and health circumstances. Based upon Mr. Chung’s dire financial situation in 2001, which is not disputed by Mrs. Chung, and his bankruptcy in late 2003, it is likely the court would have accepted a claim of undue hardship for this period had the appropriate application come before it at that time. It is the period after October 2003 that remains in doubt.

[...]

[39] In my view, Mr. Chung has failed to demonstrate real and substantial efforts to re-enter the labour market after being unemployed for almost four years. Having failed to secure employment after a five month search, Mr. Chung should be taking additional steps to obtain employment. These might include re-training courses and programs sponsored by the Provincial Government that teach job search skills. Mr. Chung should also be expected to broaden the scope of his job search. All of these steps are necessary to prove that Mr. Chung is making every effort to fulfill his legal obligation to provide financial support for his children.

In J.L.L. v. J.G.M., 2021 BCPC 193 (CanLII), Doulis J. held that mere economic difficulty in meeting the burden does not suffice. The hardship must be severe, extreme, improper, unreasonable, or unjustified:

[67] In light of these objectives, s. 10 of the Guidelines is a high threshold to meet. Mere economic difficulty in meeting the burden does not suffice. The hardship must be severe, extreme, improper, unreasonable, or unjustified. If J.L.L. satisfies this heavy burden, she must then demonstrate her household will have a lower standard of living than J.G.M.’s home unless the amount of support is reduced.

In H.(S.) v. H.(M.), 2001 BCPC 340 (CanLII) and 2001 BCPC 260 (CanLII), the mother was found to have established a case of undue hardship, in particular because of her increased debts and bankruptcy, moving expenses and car repair payments. She needed help with her basic expesens. There was no suggestion that the debts were incurred prior to separation:

[9] I referred to the mother's change of circumstances in my earlier reasons and for those reasons, and in particular because of her increased debts and bankruptcy, moving expenses and car repair payments, I am satisfied that she has established a case of undue hardship with respect to the special needs expenses of the two youngest children. As a result I am ordering that the father pay to the mother an amount of $100. per child per month for the support of the two children in the care of the mother commencing November 15, 2001, and payable on the 15th of every month thereafter.

In C.H.(S.) v. L.H.(M.), 2001 BCPC 260 (CanLII), it was added that the mother was paying higher than normal rent, had car repairs and moving expenses:

[5] The mother is experiencing difficulty with childcare in the mornings and is unable to enroll her son in athletic activities. She pays slightly higher than normal rent and has had car repair and moving expenses recently. She says she needs help with her basic expenses.

In L.C.T. v. R.K., 2015 BCSC 2378 (CanLII), appeal dismissed, except in respect to the judge’s reduction of child support for the cost of exercising access, 2017 BCCA 64 (CanLII), Weatherill J. held that the respondent has been struggling financially, intending on making an assignment into bankruptcy because of credit card debt of over $40,000 that he could not pay. He has borrowed heavily from friends and family to fund the litigation. He was operating a fledgling business that had yet to produce income sufficient to pay his debts. To order that he pay arrears of child support in these circumstances would cause undue hardship and would be inappropriate:

[373] Meanwhile, the respondent has been struggling financially. He is intending on making an assignment into bankruptcy because of credit card debt of over $40,000 that he cannot pay. He has borrowed heavily from friends and family to fund this litigation. He is operating a fledgling business that has yet to produce income sufficient to pay his debts. To order that he pay arrears of child support in these circumstances would cause undue hardship and, in my view, considering the findings I have made, would be inappropriate.

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