Undue hardship

• Author: Julien D. Payne; Marilyn A. Payne
• Pages: 339-374

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CHAPTER 7

UNDUE HARDSHIP

A. GENEAL OBSEVATIONS

Section () of the Federal Child Support Guidelines provides that a court may, on the

application of either spouse or former spouse, make a child support order in an amount

that is dif‌ferent from one that would have been determined in accordance with sec tions 

to , , or  of the Guidelines if the court f‌ind s that the spouse or former spouse making

the application, or a child in respect of whom the application is made, would suf‌fer undue

hardship as a result of an order in an a mount determined under those sections. Undue

hardship may, therefore, be invoked as a justif‌ication for deviating from the amount of child

support prescr ibed by the applic able provincia l or territori al table, or i n cases i nvolving

children over the age of majority under section ()(b) of the Guidelines, or for the purpose

of qualify ing the application of section  of the Guidelines involving obligors with income

over ,, or under section  of the Guidelines whereby the support obligation owed

to a child of the marriage by a spouse or former spouse who sta nds in t he place of a parent

may be af‌fected by a natura l or adoptive parent’s child support obligation, or to quali fy the

application of section  of the Guidelines in cases of split cu stody where each spouse has the

custody of at least one child of the marri age, or in cases of  percent access or shared cu s-

tody over a period of a year under section  of the Guidelines. In dev iating from the Guide-

lines 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 hig h threshold test of “undue hardship” applies whether

 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 u ndue hardship not satisf‌ied); Loc ke v Goulding,

 NLCA ; compare Contino v L eonelli-Contino, []  SCR ; see Chapter , Section B().

 CHILD SUPPORT GUIDELINES IN CANADA, 2020

the payor or the payee invokes section  of the Guidelines but successful applications

by payees are rare. Courts should be cautious when a f‌inding of u ndue hardship is being

sought by the recipient spouse because of the potential for abuse and should not permit sec-

tion  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.

Economic hardship faced by the payee should be addressed by means of an application for

spousal supp ort. ree potential i ssues arise pursuant to sec tion  of the Federal Child

Support Guidelines when undue hardship i s pleaded, namely

(a) whether undue ha rdship exists;

(b) whether a comparison of the standard of livi ng in each household precludes the exer-

cise of judicial di scretion; and

(c) how the court should exercise its d iscretion.

A claim of undue hardship under sect ion  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 f‌inding. A judicia l determination under section  of the Federal Child

Support Guidelines presupposes a series of steps being u ndertaken, including a consideration

of all relevant evidence, f‌inding s of fact being made, and the application of the criteria set out

in that section. ese are f unctions of a trial judge, not of an appellate court; in their absence,

an appellate court should remit the matter for reconsideration by the trial cou rt.

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

order is limited to the amount f‌ixed by the Gu idelines, without f‌irst knowing the amount of

spousal support, if any, to be ordered. While sec tion .() of the Divorce Act requires t he

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

and child support, consideration of an application for increased child support ba sed on

undue hardship within t he meaning of section  of the Federal Child Support Guideline s

must be deferred until the matter of spousal s upport has been determined. e amount of

spousal support to be paid and received must then be ta ken into account in compari ng the

standard of living of t he respective households under Schedule II of the Federal Child Sup-

port Guidelines for the pur pose of determining whether t he requirements of section ()

of the Guidelines have been satisf‌ied.

e undue hardship provisions of section  of the Federal Child Support Guidelines

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

 Suian v Suian, [] BCJ No  (SC).

 Sa by v MacIntosh, [] BCJ No  (SC); Eckert v Ecker t,  MBQB .

 Middleton v MacPherson, [] AJ No  (QB); Saby v MacIntosh,  BCSC ; Je ans v Jeans,

[] NJ No  (UFC); Williams v Williams, [] NWTJ No  (SC); Racet te 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).

 Smit h v Smith, [] AJ No  (QB); Blanchard v Blanchard,  ABCA ; Swain v Montanaro, 

ONSC  at para , Smith J; Reid v Faube rt,  NSCA ; Guenette v Morrisey,  ONSC .

 Branch v Branch, [] NBJ No  (QB); Locke v Goulding,  NLCA .

 Brandt v Brandt, [] NJ No  (CA) (trial judge in er ror in failing to consid er faxed af‌f‌idavit of parent

resident abroad; support order set a side by appellate court, rehear ing ordered).

 Galliford v Galliford, [] BCJ No  (SC); Schmid v Smith, [] OJ No  (SCJ) (application under

Ontario Family Law Act and O ntario Child Support Guidelines).

 Ibid.

Undue Hardship 

is a tough threshold to meet. e test for undue hardship requires t hat the hardship be

severe and un reasonable. Furt hermore, the use of the word “may” in section () of the

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

tionary, even if the court f‌inds u ndue hardship and a lower standard of living in the obligor’s

household. Althoug h there is lit tle judicial guidance on when this residual discretion will

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

wilfu lly refused to pay child support. e presumptive rule under section  of the Fed eral

Child Support Guide lines should not be displaced in the absence of specif‌ic a nd cogent

evidence why the applicable table amount would cause an “undue hardship.” Section  of

the Guidelines is only avai lable where excessively hard livi ng conditions or severe f‌inancial

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

refuse to f‌ind undue hardship where a parent can reasonably reduce his or her expen ses and

thereby al leviate ha rdship. In the absence of the circum stances that constitute “undue

hardship” under section  of the Federal Child Support Guidelines, a cour t has no residual

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

a parent has dif‌f‌icult y paying the table amount of child support bec ause of other f‌inancial

commitments that fall short of const ituting “undue hardship” within t he meaning of sec-

tion  of the Guidelines, that parent must rearrange his or her f‌in ancial commitments; the

child suppor t obligation ta kes priority. In most cases wherein the undue hardship provi-

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

support; the child support obligation is rarely ex tinguished, alt hough circumstances may

arise where t his is the appropriate d isposition. One way to rationalize the amou nt 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 tota l num-

ber of children for which he or she is legally responsible. Upon being satisf‌ied that undue

hardship is made out, the court considers what the basic obligation would be if t he children

were all in one family a nd then apportions that amount amongst each of the children. But

to be fair to everyone, additional factors, such as d if‌ferences in the cost of living and the

receiving parent’s actual costs of liv ing, may need to be taken into account.

 Hanmore v Hanmore, [] AJ No  (CA); Kimmerly v Henschel,  ABQB ; Van Gool v Van

Gool, [] BCJ No  (CA); LCT v RK  BCCA ; Campbell v Campbell,  MBQB ; Turner v

Yerx a, [] NBJ No  (QB); Locke v Goulding,  N LCA ; Pretty v Pretty,  NSSC  ; Locke v

Bramwell,  NSSC ; Corbett v McEachren,  NSSC ; Cole v Jerome,  NWTSC ; Harvey

v Sturk,  ONSC ; Racett e v Gamauf, [] PEIJ No  (TD); Barber v Barber,  SKQB .

 Corbett v McEachren,  NSSC , citing LCT v RK,  BCCA , para ; see als o Reid v Faubert,

 NSCA .

 CWT v KAT,  ABQB ; X(RL) v X(JF), [] BCJ No  (SC); LCT v RK,  BCCA ; Skorulski

v Zupan,  MBQB ; Locke v Gou lding,  NLCA ; Murphy v Bert,   NSSC ; Swain v

Montanaro,  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 ; Tut ty v Tut ty, [] NSJ No  (SC).

 Ellis v Ellis, [] NSJ No  (CA).

 Badry v Badry, [] BCJ No  (SC); Locke v Gould ing,  NLCA ; SM v RP, [] QJ No  (CS).

 MacEachern v Hardy,  NSSC ; Ritchie v Solonick, [] YJ No  (SC).

 Alfaro v Alfaro, [] AJ No  (QB); Tut ty v Tutt y, [] NSJ No  (SC); Larkin v Jamieson, []

PEIJ No  (SC).

 Cole v Jerome,  NWTSC   at paras –, Shaner J, citing Bumpu s v Benoit,  PESCTD .