Dealing with the consequences of a breakdown in marriage is never easy, especially when children are involved. At times, the divorce itself is not as hotly contested as the corollary issues like child support. The fact that the estranged couple have come to terms on the amount of child support to be paid by one parent to the other is no guarantee that future disputes on the matter will no longer arise.
There are a number of grounds that the payor parent may rely on in seeking a reduction of the child support payment. One such ground is undue hardship, which was discussed in the recent case of N. v. B., 2010 NWTSC 69.
In that case, the father, M.B., claimed that the amount of child support he was obligated to pay was causing him undue hardship and should therefore be reduced, if not eliminated altogether.
M.B. had a son with his spouse, M.N. M.B. had a second son with another woman.
M.B. and M.N. became involved in protracted litigation following a breakdown in their relationship. In 1992, a temporary order was made granting custody of his first son to M.N.
In 1996, an order was issued requiring M.B. to pay child support of $300 per month. M.B. fell behind in his child support payments. By 2009, his arrears in child support had ballooned to more than $44,000.
M.B. brought his first court application to have the amount of child support varied. He succeeded in obtaining a provisional order that set his ongoing child support at $233 per month and reduced his accumulated arrears by about $17,460.
M.B. brought a second application to put a halt to his support obligation. As stated, M.B. raised undue hardship as one of the grounds in support of the application. He produced a list of his debts, which included the following:
1. $19,057.73 owing on two credit cards,
2. $24,500 owing on two student loans, and
3. $1,200 as retainer fee to a lawyer.
The above amounts were on top of support arrears for his two sons totalling $70,009.01.
M.B. also had a new partner who had two sons. On the basis of his outstanding debts and his current obligation to provide for his new family, M.B. sought to vary his child support obligation to his son with M.N.
Citing the Child Support Guidelines, the judge said that an applicant seeking a reduction of his child support payments on the ground of undue hardship must satisfy a two-stage test. The first stage requires the applicant to “prove specific facts establishing the undue hardship”.
The second stage requires that an applicant “show that his or her household income would have a lower standard of living than the household of the recipient parent should support not be reduced”. Under this stage, the incomes of all members of each household would have to be analysed.
The stringent test for undue hardship evinces the intention of the law to allow any variation of child support obligations only in exceptional circumstances. The test underlies the objectives of the Guidelines of establishing a fair standard of support for children that ensure that they benefit from the financial means of each parent, and of ensuring consistent treatment of parents and children who are in similar circumstances.
It is not enough to make a general claim of an inability to pay. Mere inconvenience or difficulty does not meet the test. To rise to the level of “undue hardship”, the hardship must be excessive or disproportionate in the circumstances.
The fact that the payor parent has obligations to a new family or to other children, or that he or she has a lower standard of living than the payee parent, falls short of the requirement. According to the judge, the payor parent must specifically identify the hardship that is said to be undue.
The judge was not convinced that exceptional circumstances existed in M.B.’s case. While M.B. had significant debts and current family obligations, he was gainfully employed. M.B. also failed to provide details as to his own household’s total income and expenses.
“There is no evidence as to what it costs (M.B.) and his family to live”, said the judge. In addition, the judge found no evidence to explain “why (M.B.) has consistently not made the support payments he knows for years he had to make.” Indeed, M.B. failed to show convincing proof why paying the current amount of child support would create an undue hardship rather than a mere inconvenience.
M.B.’s application to vary the support order was therefore dismissed.
