Child support, including retroactive child support, is the right of the child. However, some payor parents may struggle to pay for retroactive and ongoing child support. It is not uncommon for retroactive child support to be several thousand dollars. The court can consider whether paying child support would create an undue hardship for the payor parent. However, a finding of undue hardship is often a difficult test to meet. It may be overturned on appeal, as in a recent Alberta Court of Appeal case, Henderson v. Micetich, 2021 ABCA 103.
In this article, we discuss the court’s considerations for determining if there is undue hardship for a child support payor parent. We’ll also include key takeaways for payor parents who intend to make an undue hardship claim.
A payor parent may claim undue hardship if they are unable to pay for child support, whether that is for retroactive or ongoing support.
Generally, the amount of child support owed is based on a set table amount that varies by province. According to section 10 of the Federal Child Support Guidelines, however, a court may decide a different amount of child support is appropriate if it finds that the applicant or the child would suffer undue hardship if the table amount was ordered. We will discuss the context of a payor who would suffer undue hardship.
Under section 10, the courts can consider the following circumstances of the payor parent:
The court must also record its reasons for ordering a different amount of child support due to undue hardship. It may make more child support payable when the circumstances causing undue hardship end.
The parties had two children, ages 15 and 17. After the separation, the children lived with the mother, and the father had parenting time every other weekend. From 2018 to 2020, the father’s income ranged from approximately $147,000 to $115,000. The parties agreed that the father’s child support would be at a maximum of $1,800 per child per year and would share section 7 expenses (for extracurriculars, extraordinary medical expenses, etc.).
The mother remarried two years after separation, and her new partner provided a high standard of living for the children.
In 2018, the mother sought retroactive child support from the father from January 2018, along with ongoing child support at the table amount.
The father had made a consumer proposal in 2019, and he was required to pay $700 per month as a result.
At chambers, the judge found that due to the mother’s new partner, the children enjoyed a higher standard of living, and it was, therefore, unnecessary for the father to pay a retroactive amount. He also concluded that the father would suffer hardship if he was required to pay retroactive child support of $18,603.
Also, for ongoing child support, the chambers judge ordered an amount lower than the table amount, at $1,412, which was $250 lower than the $1,662 table amount. The table amount was reduced because the father was required to make significant expenses to exercise his parenting time. On some occasions, the father would not be able to exercise his parenting time with one of the children due to his hockey schedule unless he paid to travel to the hockey tournament location. The chambers judge ordered that the reduced amount would be raised to the table amount when that child was no longer participating in elite hockey.
The mother appealed.
The Court of Appeal emphasized that hardship if claimed, must be “tangible and supported by evidence, and the hardship must be undue” (Henderson, supra, at para 70). While an immediate lump sum of child support may create financial difficulty, the court noted that it would not be undue nor unfair without more. The court must consider hardship to not only the payor but also the recipient parent and the child, as child support is the right of the child.
The Court of Appeal overturned the chambers judge’s finding of hardship based on the father’s consumer proposal payments of $700 per month. It noted that these payments could not take priority over his support obligations, both retroactive and ongoing. Also, the Court of Appeal noted that the consumer proposal was entered into after the mother’s application for child support began.
Overall, the Court of Appeal found that the father’s financial circumstances did not warrant a finding of undue hardship. Also, the court noted that any unfairness could be managed by adjusting the retroactive amount or adopting a payment schedule.
Furthermore, the fact that the mother’s new partner also supported the children did not create an exceptional case where the father’s child support obligations ought to be reduced.
A payor parent claiming undue hardship will need to provide significant evidence of exceptional financial circumstances in which they cannot pay for support. Even if the payor is required to make payments to creditors, more is needed, as it cannot take priority over support payments. Also, even if the children may be living with a higher standard of living after separation with the support of a new step-parent, this alone is insufficient to reduce the child support obligations of a payor parent.
Retroactive and ongoing child support can add up to a significant amount, which may be difficult for a payor parent based on their financial circumstances. Our family law lawyers at Mincher Koeman are experienced in assisting parties with disputes concerning child support and parenting time. Our Calgary family law lawyers are dedicated to finding the best resolution for your divorce matter.
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