What Is Undue Hardship in Alberta Child Support Claims?

In Canada, parents have a legal obligation to financially support their children after separation or divorce. These payments are typically calculated using the Federal Child Support Guidelines, which ensure consistent and fair support amounts based on income. However, what happens if making those payments causes severe financial difficulty? In rare cases, a parent may apply for a reduction in child support due to undue hardship—but be warned, these claims are difficult to prove.

What is Undue Hardship?

Undue hardship is an exceptional remedy found in Section 10 of the Federal Child Support Guidelines. It allows a parent to seek a deviation from the standard support amount if paying the full amount would cause excessive financial difficulty. However, experiencing general financial strain is not enough. The courts have consistently held that the hardship must be excessive, disproportionate, and backed by strong evidence.

For example, the Guidelines recognize the poverty line at $12,000 per year. Even earning below this amount does not automatically qualify a payor for a reduction. The courts require specific, exceptional circumstances to consider an undue hardship claim.

In Henderson v. Micetich, 2021 ABCA 103, the Alberta Court of Appeal overturned an undue hardship finding where the payor father was under a consumer proposal with $700 monthly payments. The court ruled that financial difficulty alone was not undue or unfair without more, and emphasized that support obligations take priority over debt payments.

The Two-Step Test for Undue Hardship

To succeed in an undue hardship claim, a payor must meet a two-step test:

1. Prove financial hardship: Show that paying the Guideline amount would cause serious financial difficulty.
2. Standard of living comparison: Demonstrate that the payor’s household would have a lower standard of living than the recipient’s if the Guideline amount were paid.

Both steps require detailed financial disclosure and clear evidence.

Valid Reasons for Undue Hardship

While every case is fact-specific, courts may consider the following situations as potential grounds for undue hardship:

• High debt levels from supporting the child or spouse before separation.
• Excessive access costs—for instance, significant travel expenses to visit the child.
• Legal obligations to support another adult or child (e.g., aging parents or children from a prior relationship).
• Health issues or disabilities that impact earning capacity or increase expenses.
• Substantial income disparity between households, especially if the recipient parent’s new household enjoys a much higher standard of living.

However, these reasons alone are not enough; detailed documentation is required.

Conclusion: A Tough Legal Test

Undue hardship claims are challenging and require solid evidence, especially during the standard of living test, which compares both households’ adjusted incomes. Given the complexity, consulting an experienced family lawyer is essential if you are considering making an undue hardship claim.

Need help with a child support matter in Alberta?

Contact Stokes Law Law for a free 30-minute consultation with our family law team.