What is Undue Hardship?
Undue hardship is one of the exceptions to the table amount talked about in the ‘Child Support’ section. Undue hardship means that the person’s circumstances would either make it difficult to pay the required amount of support (if they are the payor), or support the child on the amount they are receiving (if they are the recipient). Undue hardship is not about claiming that you ‘can’t afford it.’
Undue hardship is a very difficult argument to make, and it requires a two-step test to be passed. First, the person making the application must show that they have an ‘undue hardship circumstance.’ If you cannot show that you have at least one of these specific circumstances, you cannot go on with the second part of the test. If you can show that you have an undue hardship circumstance, you then have to perform a standard-of-living comparison between your household, and the other party’s household. You, or a lawyer acting on your behalf, must do the calculations for this test – the court will usually not do this for you.
What are ‘undue hardship circumstances’?
The first part of the undue hardship test is showing that you have at least one of the undue hardship circumstances. If you do not meet this first part of the test, you cannot go onto the second part (your application has failed).
Undue hardship circumstances include:
unusually high debts from supporting your family before the separation or to earn a living
unusually high costs related to parenting time with the child
a legal duty to support another person, including a person who, because of illness, disability, or other cause (including education) cannot support themselves
a legal duty to support another child (for example, a child you had from a different relationship)
What is the ‘household standard of living comparison’?
This comparison is the second part of the undue hardship test. Once you have shown that you have at least one undue hardship circumstance, you must then show that the standard of living for your household is lower than that of the other parent’s household.
When doing the household comparison, the court requires you to take into account the money earned by anyone else in your household that is earning an income. For example, if you have a new partner, roommate or adult child living with you, you will need to show their incomes and include them in your comparison. They will usually have to file some sort of financial statement or documents with the court (like tax information or paystubs, for example). You will also need to take into account the income earned by anyone else in the other party's household. The income of these household members will not affect the amount of support – this information is only used for calculating the standard of living of each household.
The undue hardship test is explained in section 10(1) of the Guidelines.
You can get help performing this test in Worksheet 3 of the Federal Child Support Guidelines Step-by-Step booklet.
It is always recommended you obtain legal advice. Click here for information about legal support and advice options in Nova Scotia, including no- and low-cost services.