Undue Hardship Might Lead to Lower Child Support Payments

Written on behalf of Shariff & Associates

Parents have an obligation to provide financial support to their children. Following a separation or divorce, one parent may be obliged to pay child support in accordance with the amounts established by the federal Child Support Guidelines (the “Guidelines”) based on the payor parent’s income. However, in some circumstances, a payor parent may argue that the table amount of support is too high and paying such an amount is causing them to suffer undue hardship. If undue hardship is found, a court may reduce support payments. 

Families are expected to bear some hardship that arises from the division of financial resources, and the mere fact that a payor is paying support to several families does not automatically create undue hardship. Courts have ultimately indicated that payor parents are responsible for their actions and for supporting their children. 

The Test for Undue Hardship 

Section 3 of the Guidelines states the presumptive rule that the amount of child support to be paid is based on the Guidelines table amount. 

Section 10 relates to undue hardship and enables a court to award a different amount of support “if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.” Section 10(2) sets out the circumstances that may cause a parent, spouse or child to suffer undue hardship, which can include: 

“(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children;

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

[…]

(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education.”

A claim for undue hardship is dealt with in three parts. The claimant must first show that there are circumstances which could create undue hardship. Secondly, the claimant must show that their standard of living is less than that of the responding party. Finally, if a court believes that the claimant has suffered undue hardship, it may set an amount of support that differs from the table amount. It is important to note that the court retains discretion to refuse to order a reduction in support, even if the first two parts of the claim are met. 

What is the Difference Between Hardship and Undue Hardship?

Courts have reiterated that it is very difficult to establish undue hardship under section 10 of the Guidelines. Courts generally take the approach that an application for undue hardship should only be granted on an exceptional basis. 

The restrictive approach to undue hardship claims stems from efforts not to undermine the primary objectives of the Guidelines and establish certainty and consistency. Courts have also distinguished between “hardship” and “undue hardship” which are determined on a case-by-case basis. Moreover, some hardship can be expected when a relationship ends. The legislation has been interpreted to mean that for a claim to be successful, something more is required than simply a payor parent being required to engage in a lower standard of living after a separation or divorce. 

Mere Hardship is not Grounds to Reduce Support 

Courts across the country have affirmed that hardship must be more than merely an inconvenience. The Court of Appeal of Alberta stated in Hanmore v. Hanmore that the hardship must be exceptional, excessive, or disproportionate according to their circumstances. In Smith v. Hookey, the Newfoundland Supreme Court wrote that “synonyms for undue include: excessive, extreme, improper, unreasonable, unjustified.” 

Therefore, the fact that the provisions of section 10 of the Guidelines could apply to an applicant claiming undue hardship is not determinative of the issue, as the hardship must be “undue”. Consequently, courts have found that the paying spouse should show that “excessively hard living conditions” would ensue if the payor had to pay the amount set by the Guidelines, as expressed by the Nova Scotia Court of Appeal in Ellis v. Ellis. 

Courts Require Clear Evidence of Hardship 

Courts have found that a payor parent’s lower standard of living post-separation or divorce is insufficient evidence to support a finding of undue hardship. Likewise, in Atkinson v. Johnson, Justice Curtis of the Ontario Court of Justice explained that second families with support obligations are not uncommon. Further, Her Honour stated that just because the payor’s standard of living may be lower due to their support obligations to another child, this factor does not automatically create undue hardship. 

The decision in Min v. Soe clarified that when a payor alleges undue hardship due to an obligation to support a second family, they must provide clear evidence in order to demonstrate that “children in the second family would suffer significant deprivation if the table amount was ordered for the children of the first relationship.” The deprivation could be related to food, clothing, shelter, or medical or health needs.

In Ponte v. Paiva the Ontario Court of Justice decided that, while the father’s payment of the table amount of child support would be difficult, he could not prove that it would create an undue hardship. The father claimed that he paid $600 per month in child support for his three other children but could not demonstrate to the Court that he made these payments consistently. The bank records did not support his claim that he paid cash and there was little evidence in his testimony. The records did show that he began paying support by cheque, but the Court opined that these late payments were initiated to help support his undue hardship claim. 

Court Reminds Payor That His Children are His Responsibility 

In Atkinson v. Johnson, the Court was required to determine the appropriate amount of support to be paid to four of the father’s children. In total, the father had eleven children with four mothers and had advanced an undue hardship claim on the basis that he had a support obligation to seven other children. 

The Court found that the father’s case failed at the first stage of the test as he was unable to establish that the hardship was exceptional or excessive. The Court noted that the father paid no support to four children until a 2019 court order required him to, after which point he only paid support for a few months. Additionally, the father quit his job in January 2020, despite earning $111,542 in the previous year. Further, the father failed to provide full disclosure about his business, corporate bank accounts, lines of credit, and the source of deposits into his bank accounts. He alleged that he received money as loans but could provide no documentation to support the claim. 

The Court believed that the father sought to reduce support for his oldest children and wanted to validate this by court order. However, the Court reminded the father that the children were his financial responsibility and that he already failed to appropriately support them for several years during which time he had an obligation to do so. Since the father provided no evidence to prove that he was paying support for seven other children, the Court did not consider his other obligations. 

The Family Lawyers at Shariff & Associates Provide Comprehensive Advice on Child Support and Variation Applications 

The compassionate family lawyers at Shariff & Associates help clients obtain fair and equitable resolutions to various family disputes, including child support and parenting arrangements. Whether you are seeking to apply for undue hardship or are required to defend against one, our team will guide you throughout the entire process. We provide clients with superior representation to protect their rights while obtaining the best possible outcome. We are Stouffville’s largest family law firm and we proudly represent clients throughout Markham and the Greater Toronto Area. To schedule an initial consultation with a member of our experienced team, please reach out to us online or call us at 905-591-4545.