Undue Hardship Test: Which Debts and Costs Qualify in Ontario

Child support is normally set using the Guidelines amount. But some people are carrying heavy debts, paying a lot to see their children, or supporting other people, and the standard amount feels impossible or unfair.

The law has a narrow safety valve for these situations called undue hardship. This article explains which circumstances qualify, how the court compares the two households, and what a hardship order can look like.

What undue hardship means

Under section 10(1) of the Federal Child Support Guidelines, either spouse may ask the court to award child support in an amount different from the Guidelines amount if the spouse or a child would otherwise suffer undue hardship.

Notice that either side can ask. A payor can claim hardship to ask for less, and a recipient can claim it as well. Notice also the word "undue". Everyone has tight budgets after separation. Hardship has to go beyond the ordinary strain of running two households, and the Guidelines list specific circumstances, such as unusually high debts, unusually high parenting time costs or other legal support duties.

The circumstances that can qualify

Section 10(2) sets out the circumstances a court may consider. They are not a general invitation to argue that money is short.

Two words recur in the debt category: "unusually" and "reasonably". Debt that was taken on for the family or for earning a living may qualify if it is unusually high. Ordinary spending or debt that was not reasonably incurred is a harder fit.

Examples of how these play out

These are general illustrations, not predictions. Whether a situation qualifies depends on the facts and the evidence.

• A parent who lives far from the child and faces unusually high travel costs to exercise parenting time may point to section 10(2)(b).
• A parent who is already required by an order or written separation agreement to support someone else may rely on section 10(2)(c).
• A parent who has a legal duty to support a child from a different relationship, who is not a child of the marriage, may point to section 10(2)(d).
• A parent who has a legal duty to support anyone who cannot obtain the necessaries of life because of illness or disability may point to section 10(2)(e).
• A parent carrying very large debts that were reasonably taken on for the family or to earn a living may rely on section 10(2)(a).

The household comparison

Proving a listed circumstance is only the first step. Section 10(3) requires the court to deny the claim if the claimant's household would have a higher standard of living than the other spouse's household after child support is set.

To compare the households, the court may use the test in Schedule II of the Guidelines. The comparison is about how well off each household is, so the details of both households matter. A lawyer can explain how the Schedule II calculation would apply to your numbers.

Time limits and written reasons

A hardship order does not have to be permanent. The court may set a reasonable time for the hardship-causing obligation to be satisfied, and set the amount payable after that time. For example, a debt that will be paid off in a defined period may lead to a lower amount for now and a return toward the Guidelines amount later.

If the court awards a different amount, it must record its reasons for doing so. That makes it important to present clear evidence, because the decision has to explain itself.

What to do next

• Identify which listed circumstance, if any, fits your situation.
• Gather proof: statements for debts, receipts for travel and parenting time costs, and copies of any orders or agreements creating other support duties.
• Collect income and expense information for your household and be ready to discuss the other household's circumstances.
• Remember that hardship is an exception, so be realistic about the Guidelines amount as a starting point.
• Speak with a family lawyer before filing or agreeing to a different amount, since the comparison step can defeat an otherwise valid claim.

Frequently asked questions