The father was awarded custody of the two children of the marriage on separation. A now 13-year-old child born to the mother prior to the marriage continued to live with her. The mother was ordered to pay $25 per month in child support to the father. The father brought an application to vary the support being paid and was successfully in having the support increased to $40 per month. On that application, the chambers judge found that the 35-year-old mother, who was on welfare, was underemployed but refused to impute income to her. There was ongoing animosity between the parties and it was found that she disregarded the truth in prior proceedings. A t the time the new application was brought, the mother was earning a projected annual income of $14,000. The judge increased the monthly payments from $40 to $125. The father argued that the trial judge erred in refusing to impute income to the mother under section 19(1)(a) of the Federal Child Support Guidelines, arguing that she was intentionally underemployed (working 20 hours/week as a lifeguard). He also argued that the judge erred in finding that she would suffer undue hardship if required to pay the amount of child maintenance provided in the basic guideline table.
- Should the wife be imputed income due to intentional underemployment pursuant to 19(1)(a)?
- Would the basic guideline amount be an "undue hardship" on the mother pursuant to s. 10?
Justice Prowse, writing for the court, dealt first with the imputed income appeal. Based on the wife's conduct, the court concluded that she had decided to remain underemployed for as long as possible to the detriment of the children of the marriage. Based on the evidence before them, Prowse concludes that a reasonable estimate would be based on a 30 hour work week, 48 weeks a year, with an estimated annual income of $19,000. Based on the tables, that would result in a support payment of $282/month.
Turning to the issue of undue hardship, he quotes Swift v Swift stating:
Undue hardship is a tough threshold to meet. Payment of child support is often seen as a financial hardship by the payor and the new family. It generally consumes a large portion of much needed cash or discretionary income. The payment of the guideline amount will rarely be a hardship that is undue in the legal sense.Prowse says there is a two part test:
- the spouse applying for relief must prove that payment of the table amount would cause undue hardship with consideration to the factors in s. 10(2) (not a closed list);
- if that is proven, the applicant must prove that if the table amount was paid, the household standard of living of his/her house would be lower than that of the other spouse.
Only if both of these elements are met can a court exercise its discretion to award an amount different than that from the tables.
Applying this to the case at bar, he concluded that the wife could not pass the first step of the test, and thus the undue hardship claim must fail.
Establishes the test for undue hardship under s. 10.