What Is Undue Hardship in Ontario Child Support Cases?

A court can award child support that differs from the Guideline table amount in some situations. Sometimes paying that amount, or living on what you receive, would cause real hardship. The Guidelines allow for an exception, but it is a narrow one, and many people misunderstand it.

This article explains what undue hardship means, the circumstances the Guidelines list, the comparison test that can defeat a claim, and how people usually prepare. It is general information, and your facts matter.

What undue hardship means

On either spouse's application, a court may award a child support amount that differs from the table amount if the spouse making the request, or a child for whom the request is made, would otherwise suffer undue hardship. Either side can apply: a payor who cannot manage the table amount, or a recipient whose household faces unusual hardship.

The word undue matters. Ordinary strain after separation, such as higher living costs for two households, is not the same thing. The Guidelines set out circumstances that may cause undue hardship, and whether yours is one of them is worth confirming with a lawyer.

Circumstances the Guidelines list

The Guidelines say circumstances that may cause undue hardship include the following:

• An unusually high level of debts reasonably incurred to support the spouses and children before separation, or to earn a living.
• Unusually high expenses of exercising parenting time.
• A legal duty under a judgment, order or written separation agreement to support any person.
• A legal duty to support a child who is not a child of the marriage, meaning a child under majority, or older but unable to obtain necessaries because of illness, disability or other cause.
• A legal duty to support any person unable to obtain necessaries due to illness or disability.

Whether your situation counts depends on the amounts and the facts. For example, whether a debt is unusually high and was reasonably incurred is something a court looks at closely, so records are important.

The standard of living test

Even if undue hardship is found, the application must be denied if the household of the spouse claiming hardship would, after the Guideline amount is set, have a higher standard of living than the other spouse's household. The court may use the comparison of household standards of living test in Schedule II of the Guidelines.

In practice this means a claim is not only about your own bills. The court may compare the standard of living of both households, so it is sensible to gather clear information about your own household's finances.

What an order can look like

If a court awards a different amount for undue hardship, it may specify in the order a reasonable time for satisfying the obligation that causes the hardship, and the amount payable at the end of that time. This means the adjustment can be temporary, for example while a debt is being paid down.

Section 7 expenses, such as child care, health costs over insurance, and extraordinary educational or extracurricular costs, are handled separately and are generally shared in proportion to the spouses' incomes. If circumstances change later, the Guidelines define when an order can be varied, including any change that would result in a different child support order where the amount includes a table determination.

How to prepare a claim

The evidence you bring is what makes a claim credible. A lawyer can tell you what proof a court will expect for your type of claim.

• Income documents for both households, if you can get them.
• Statements and agreements showing the debts, when they were taken on, and why.
• Court orders or separation agreements showing other support duties.
• Records of travel and other costs of exercising parenting time.
• A household budget showing your standard of living compared with the other household.
• Medical or disability records if a dependant is unable to obtain necessaries.

Get legal advice before you reduce payments on your own. How this applies depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions