Undue Hardship

• Jurisdiction: Canada
• Pages: 370-405
• Author: Julien D. Payne,Marilyn A. Payne

370

 

Undue Hardship

A. GENERAL OBSERVATIONS

Section 10(1) of the Federal Child Support Guidelines provides that a court may, on the appli-

cation of either spouse or former spouse,1 make a child support order in an amount that is

dierent from one that would have been determined in accordance with sections 3 to 5, 8, or

9 of the Guidelines if the court nds that the spouse or former spouse making the application,

or a child in respect of whom the application is made, would suer undue hardship as a result

of an order in an amount determined under those sections. Undue hardship may, therefore,

be invoked as a justication for deviating from the amount of child support prescribed by the

applicable provincial or territorial table, or in cases involving children over the age of major-

ity under section 3(2)(b) of the Guidelines, or for the purpose of qualif ying the application of

section 4 of the Guidelines involving obligors with income over $150,000, or under section 5

of the Guidelines whereby the support obligation owed to a child of the marriage by a spouse

or former spouse who stands in the place of a parent may be aected by a natural or adoptive

parent’s child support obligation,2 or to qualify the application of section 8 of the Guidelines

where each spouse has the primary care of at least one child of the marriage,3 or in cases of

shared parenting time under section 9 of the Guidelines.4 In deviating from the Guidelines

that would be applicable but for undue hardship, the court may, on the application of either

spouse or former spouse, set child support at a higher or lower level than would otherwise

be payable. e same high threshold test of “undue hardship” applies whether the payor or

the payee invokes section 10 of the Guidelines5 but successful applications by payees are rare.6

 Middleton v MacPherson, [] AJ No  (QB); Lavoie v Lavoie (Lillos),  ABQB ; MS v JC, 

PESC  (application by obligor).

 Locke v Goulding,  NLCA .

 Scharf v Scharf, [] OJ No  (Gen Div).

 Kerr v Kerr, [] BCJ No  (SC) (stringent test of undue hardship not satised); Locke v Goulding,

 NLCA ; compare Contino v Leonelli-Contino, []  SCR ; see Chapter , Section B().

 Suian v Suian, [] BCJ No  (SC).

 Saby v MacIntosh, [] BCJ No  (SC); Eckert v Eckert,  MBQB .

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Undue Hardship 371

Courts should be cautious when a nding of undue hardship is being sought by the recipient

spouse because of the potential for abuse and should not permit section 10 to be invoked by

the payee as an indirect vehicle for the payment of spousal support or for imposing a child

support obligation on other members of the obligor’s household.7 Economic hardship faced

by the payee should be addressed by means of an application for spousal support.8 re e

potential issues arise pursuant to section 10 of the Federal Child Support Guidelines when

undue hardship is pleaded, namely

(a) whether undue hardship exists;

(b) whether a comparison of the standard of living in each household precludes the exercise

of judicial discretion; and

(c) how the court should exercise its discretion.9

A claim of undue hardship under section 10 of the Federal Child Support Guidelines

should be included in the pleadings or they should be amended to include such a claim

before the court makes any such nding.10 A judicial determination under section 10 of the

Federal Child Support Guidelines presupposes a series of steps being undertaken, including

a consideration of all relevant evidence, ndings of fact being made, and the application of

the criteria set out in that section. ese are functions of a trial judge, not of an appellate

court; in their absence, an appellate court should remit the matter for reconsideration by

the trial court.11

It is not possible to determine whether undue hardship will exist if the child support

order is limited to the amount xed by the Guidelines, without rst knowing the amount of

spousal support, if any, to be ordered. While section 15.3(1) of the Divorce Act requires the

court to give priority to child support where there are concurrent applications for spousal

and child support, consideration of an application for increased child support based on

undue hardship within the meaning of section 10 of the Federal Child Support Guidelines

must be deferred until the matter of spousal support has been determined.12 e amount

of spousal support to be paid and received must then be taken into account in comparing

the standard of living of the respective households under Schedule II of the Federal Child

Support Guidelines for the purpose of determining whether the requirements of section 10(3)

of the Guidelines have been satised.13

e undue hardship provisions of section 10 of the Federal Child Support Guidelines

create a fairly narrow judicial discretion to deviate from the Guidelines. Undue hardship

 Middleton v MacPherson, [] AJ No  (QB); Saby v MacIntosh,  BCSC ; Jeans v Jeans,

[] NJ No  (UFC); Williams v Williams, [] NW TJ No  (SC); Racette v Gamauf, [] PEIJ

No  (TD); O’Hara v O’Hara, [] SJ No  (QB). See also MS v JC,  PESC  at para .

 Kehler v Kehler, [] AJ No  (QB).

 Smith v Smith, [] AJ No  (QB); Blanchard v Blanchard,  ABCA ; Swain v Montanaro, 

ONSC  at para , Smith J; Reid v Faubert,  NSCA ; Guenette v Morrisey,  ONSC .

 Branch v Branch, [] NBJ No  (QB); Locke v Goulding,  NLCA . See also Henderson v

Micetich,  ABCA  at para .

 Brandt v Brandt, [] NJ No  (CA) (trial judge in error in failing to consider faxed adavit of

parent resident abroad; support order set aside by appellate court, rehearing ordered).

 Galliford v Galliford, [] BCJ No  (SC); Schmid v Smith, [] OJ No  (SCJ) (application

under Ontario Family Law Act and Ontario Child Support Guidelines).

 Ibid.

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372   ,  

is a tough threshold to meet.14 e test for undue hardship requires that the hardship be

severe and unreasonable.15 Furthermore, the use of the word “may” in section 10(1) of the

Guidelines clearly demonstrates that any deviation from the Guidelines amount is discre-

tionary, even if the court nds undue hardship and a lower standard of living in the obligor’s

household.16 Although there is little judicial guidance on when this residual discretion will

be exercised, it is inappropriate to exercise it where the parent alleging undue hardship has

wilfully refused to pay child support.17 e presumptive rule under se ction 3 of the Federal

Child Support Guidelines should not be displaced in the absence of specic and cogent

evidence why the applicable table amount would cause an “undue hardship.”18 Section 10 of

the Guidelines is only available where excessively hard living conditions or severe nancial

consequences would result from the payment of the Guidelines amount.19 A court should

refuse to nd undue hardship where a parent can reasonably reduce his or her expenses

and thereby alleviate hardship.20 In the absence of the circumstances that constitute “undue

hardship” under section 10 of the Federal Child Support Guidelines, a court has no residual

discretion to lower the applicable table amount of child support under the Guidelines. If

a parent has diculty paying the table amount of child support because of other nancial

commitments that fall short of constituting “undue hardship” within the meaning of section

10 of the Guidelines, that parent must rearrange his or her nancial commitments; the child

support obligation takes priority.21 In most cases wherein the undue hardship provisions of

the Guidelines are met by the obligor, there is only a reduction in the amount of support; the

child support obligation is rarely extinguished, although circumstances may arise where this

is the appropriate disposition.22 One way to rationalize the amount of child support to be

paid when a paying parent demonstrates undue hardship is by reference to how much that

parent would be required to pay for one family consisting of the total number of children for

which he or she is legally responsible. Upon being satised that undue hardship is made out,

the court considers what the basic obligation would be if the children were all in one family

 Hanmore v Hanmore, [] AJ No  (CA); Kimmerly v Henschel,  ABQB ; Van Gool v Van

Gool, [] BCJ No  (CA); LCT v RK,  BCCA ; Bassett v Magee,  BCSC ; Campbell

v Campbell,  MBQB ; Turner v Yerxa, [] NBJ No  (QB); Locke v Goulding,  NLCA ;

Pretty v Pretty,  NSSC ; Locke v Bramwell,  NSSC ; Corbett v McEachren,  NSSC

; Cole v Jerome,  NWTSC ; Praetzel v Porter,  NWTSC ; Harvey v Sturk,  ONSC

; Racette v Gamauf, [] PEIJ No  (TD); Barber v Barber,  SKQB .

 Corbett v McEachren,  NSSC , citing LCT v RK,  BCCA  at para ; Callwood v Purdy,

 ONSC ; see also Hull v Kornilov,  BCSC ; Reid v Faubert,  NSCA ; Vardy v

Vard y,  NSSC .

 CWT v KAT,  ABQB ; X(RL) v X(JF), [ ] BCJ No  (SC); LCT v RK,  BCCA ;

Skorulski v Zupan,  MBQB ; Locke v Goulding,  NLCA ; Murphy v Bert,  NSSC ;

Praetzel v Porter,  NWTSC ; Swain v Montanaro,  ONSC ; Callwood v Purdy, 

ONSC ; Barber v Barber,  SKQB .

 RDO v CJO, [] BCJ No  (SC).

 Hanmore v Hanmore, [] AJ No  (CA); Scott v Scott, [] BCJ No  (SC); Locke v Goulding,

 NLCA ; Tutty v Tutty, [] NSJ No  (SC).

 Ellis v Ellis, [] NSJ No  (CA).

 Badry v Badry, [] BCJ No  (SC); Locke v Goulding,  NLCA ; SM v R P, [] QJ No  (CS).

 MacEachern v Hardy,  NSSC ; Ritchie v Solonick, [] YJ No  (SC).

 Alfaro v Alfaro, [] AJ No  (QB); Tutty v Tutty, [] NSJ No  (SC); Larkin v Jamieson,

[] PEIJ No  (SC).

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