Child Support and Undue Hardship

February 2011

Payors often seek to reduce the amount of support they pay, despite Child Support Guidelines dictating the amount. A possible way to reduce a child support obligation from those proscribed by the Child Support tables is by arguing “undue hardship”. However, a claim based on hardship is unlikely to succeed.

Section 3 of the Child Support Guidelines outlines the presumptive rule that the amount of child support provided for in the tables, together with any s.7 “add-ons” for special and extraordinary expenses, is the amount that a payor is required to pay for children under the age of majority.

On either spouse’s application, a court may award an amount of child support that is different from the presumptive amount determined, if the court finds that the spouse making the request would otherwise suffer undue hardship. Circumstances which may cause a spouse to suffer undue hardship include the following:

(a) 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;

(b) the spouse has unusually high expenses in relation to exercising access to a child;

(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) 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

(e) 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.

The person asking for a child support order different than the table amount because of undue hardship has the onus of demonstrating why such different quantum should be awarded. That demonstration must be with clear and compelling evidence. Undue hardship will not be presumed. Some evidence is needed to establish that the facts relied upon would result in not only hardship, but “undue” hardship.

The spouse applying for relief must first prove that the payment of the table amount would cause undue hardship under s. 10(1) having regard to the criteria in s.10(2). If the test is met the spouse seeking the reduction must go on to establish that, if the required amount was paid, the standard of living of his/her household would be lower than that of the household of the other spouse. Having then met both tests, the Court has the discretion to award a different amount than otherwise required by the Guidelines.

Undue hardship requires hardship that is extreme, improper, unreasonable, and unjustified. It is a difficult threshold to meet. The payment of guideline support will rarely be hardship in the legal sense. Undue hardship must be “more than awkward or inconvenient” A court will refuse to find undue hardship where a parent can reasonably reduce his or her expenses and thereby alleviate the hardship. If a parent has difficulty paying the table amount of child support because of other financial commitments that fall short of constituting undue hardship within the meaning of s. 10, that parent must re-arrange his or her financial commitments. The child support obligation takes priority.

In short, there must be some exceptional or extraordinary reasons to depart from the presumptive rule in the Guidelines.

The information contained above is not legal advice, but merely provided as information. It should not be relied upon as legal advice. If you have questions about child support, or any other Family Law matter, and would like more information please contact me to arrange an appointment.

Author

Ken practises family law and estate litigation. He attended Laurentian University where he obtained his Bachelor of Arts (Hon.), with distinction, in 2006. Ken attended the University of Western Ontario and obtained his Bachelor of Laws in 2009. While in law school, he was on the Dean’s Honour List. More →