Undue Hardship Claims in BC Child Support

When the Table Amount Causes Real Trouble

The Federal Child Support Guidelines exist to make child support predictable: income plus number of children produces a table amount. But the drafters knew a formula cannot see everything, so they built in a narrow safety valve. Under section 10 of the Guidelines, a court may order an amount different from the usual calculation if the spouse asking, or a child, would otherwise suffer undue hardship. An undue hardship child support claim can be made by either side: a payor asking to pay less, or a recipient asking for more. This page explains what the section actually says, why these claims are hard to win, and what evidence a serious claim needs.

SiLaw Group Family Lawyers is a boutique family law and mediation firm in South Surrey. Family law is the only kind of law we practise, and we serve clients in English and Punjabi. Because we act for payors and recipients alike, we can tell you honestly whether a hardship claim is worth advancing or defending. For how the standard calculation works first, see our child support services and our complete child support guide.

The Circumstances the Guidelines List

Section 10(2) sets out circumstances that may cause undue hardship. The list includes:

• responsibility for an unusually high level of debts reasonably incurred to support the family before separation, or to earn a living;
• unusually high expenses in relation to exercising parenting time with a child, common where parents live far apart;
• a legal duty under a judgment, order or written separation agreement to support any person;
• a legal duty to support another child, one who is not a child of the marriage, who is under the age of majority or is an adult unable to obtain the necessaries of life because of illness, disability or other cause; and
• a legal duty to support any person unable to obtain the necessaries of life due to illness or disability.

Notice what is not on the list: ordinary bills, a new mortgage, a lifestyle that no longer fits one income. The listed circumstances all involve unusual burdens or competing legal duties, and the word "undue" signals more than the ordinary financial strain that follows almost every separation.

The Household Standards of Living Test

Here is the part that defeats most claims. Even where a court finds undue hardship, section 10(3) says the application must be denied if the household of the spouse claiming hardship would, after the usual support calculation, have a higher standard of living than the household of the other spouse. In comparing the two, the court may use the comparison of household standards of living test set out in Schedule II of the Guidelines (s. 10(4)), which works from the total income of everyone in each household, not just the two parents. A new partner's income, on either side, comes into view.

So a hardship claim is really a two-step climb. First, prove circumstances that make the usual amount unduly harsh, not merely tight. Second, show that granting relief would not leave your household better off than the other one. Failing either step ends the claim. And even success has limits: the court may set a reasonable time for the hardship-related relief and fix the amount payable at the end of that time (s. 10(5)), and it must record reasons whenever it departs from the usual amount (s. 10(6)).

Why These Claims Are Hard, and What Evidence They Need

Everything about section 10 runs on numbers, which means everything runs on disclosure. A claim built on assertions goes nowhere; a claim built on documents at least gets a hearing. Expect to need:

• complete income disclosure for both parents, and income information for other members of each household, since the standards of living comparison is household-wide;
• documents proving the debts you rely on, showing when and why they were incurred, because only debts reasonably incurred to support the family or to earn a living count;
• receipts and travel records where the claim rests on high parenting-time expenses; and
• the orders, judgments or written agreements that create any competing support duties.

Our Form F8 financial disclosure guide explains the financial statement that carries most of this, and our post on the importance of disclosure explains what happens when documents are missing or late. If both parents can see the same accurate numbers, some hardship disputes settle without a judge, sometimes through mediation. And where hardship is really about arrears that built up under an old order, the better route may be a variation or a claim about back support; see retroactive child support.

Frequently Asked Questions

What Counts as Undue Hardship Under the Guidelines?

Section 10(2) lists circumstances that may qualify, including unusually high family or work-related debts, unusually high parenting-time expenses, and legal duties to support other children or other persons who cannot support themselves. The list describes unusual burdens, and the hardship must be undue, meaning more than the belt-tightening that ordinarily follows separation.

Why Are Undue Hardship Claims so Hard to Win?

Because proving hardship is only half the test. Section 10(3) requires the court to deny the claim if the claiming spouse's household would still enjoy a higher standard of living than the other household after support is calculated the usual way, and that comparison counts the income of everyone in each home. Many otherwise sympathetic claims fail at exactly this step.

Can a Recipient Claim Undue Hardship, or Only a Payor?

Either spouse can apply under section 10(1), and the hardship can be the spouse's or a child's. A recipient might claim, for example, where the usual amount leaves the child's household under unusual strain given the circumstances the section lists. The same two-step test, including the household comparison, applies in both directions.

Is a Successful Undue Hardship Claim Permanent?

Not necessarily. Under section 10(5), the court can set a reasonable time for satisfying the obligations behind the hardship, such as paying down qualifying debts, and specify the amount payable once that time ends. The relief is tailored to the hardship, and the court must record its reasons for any different amount.

Talk to a Child Support Lawyer in Surrey for Free

If the usual calculation genuinely does not fit your situation, or you are facing a hardship claim you think is inflated, the first 30 minutes with us are free, in English or Punjabi, by phone, video, or in person at Suite 201, 3108 Croydon Drive in South Surrey. Call (778) 381-9977 or Book Now for a Free Consultation.

This page is legal information, not legal advice. For advice about your own situation, speak with a lawyer.