Family Law / Divorce Library

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Child Support:
Undue Hardship

Undue Hardship

An undue hardship claim is one where the calculated amount of child support is reduced because of very exceptional circumstances. These claims are very rarely successful.

There are two parts to the test. First, a Household Standards of Living Test is performed to see if the recipient's household would enjoy a higher standard of living if child support is not reduced. There is a formula that the court may use. That formula looks at the income of each parent, each of their new partners' incomes, and the number of dependents in each household. The calculation is quite complex and is performed by paid software used by lawyers called ChildView or DivorceMate. A lawyer in our directory could be hired to perform these calculations for you.

The second part to the test is that there must be circumstances which cause the spouse or a child to suffer undue hardship, which can include (but is not limited to):

  1. 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;

  2. the spouse has unusually high expenses in relation to exercising parenting time with a child;

  3. the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

  4. 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

  5. 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.

Travel expenses to see children might instead by addressed by requiring each parent to equally share in travel costs (TRA v SAE, 2018 ABQB 50 at para 137). Or if the parent who the children reside with primarily has a much higher income, they may be responsible for travel costs (Mason v Mason, 2013 ABCA 172; Nguyen v Tran, 1997 CarswellAlta 557 (AB QB)). Travel costs might also be addressed as part of a Relocation. Travel costs could also be a consideration in relation to spousal support or partner support.

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Child Support:
Undue Hardship


Content by Ken Proudman of BARR LLP (Edmonton)

Last updated on November 12, 2022

Last complete review of all content on this page on November 12, 2022

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