Fine & Associates Professional Corporation

This section of the Guidelines provides that a court may “award an amount that is different from the amount determined under the Guidelines, if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship”.   Although the Guidelines does not specifically define “undue hardship”, the court may consider that the following circumstances results in “undue hardship”:

- the spouse has an unusually high level of debts that was “reasonably incurred to support the spouses and their children prior to the separation or to earn a living”;

-the spouse has a “legal duty” under an Order, judgment or Agreement to support another person, to support a child (other than the child of the marriage), who is under the age of majority or over the age of majority and is still dependent;

- the spouse has unusually high expenses in relation to exercising access to a child;

However, even if the payor does have circumstances that result in “under hardship”, a court would not order an amount of support that is different than as set out in the Guidelines, if the payor’s household “standard of living” is greater than “standard of living” of the recipient.

Although many payors claim that they cannot pay base support due to “under hardship”, it is my experience that this is a very hard test to meet.  The “standard of living” test must be analyzed with the assistance of family law counsel.  Please feel free to contact our office and we can discuss this issue.