Undue hardship
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 335-368 |
CHAPTER 7
UNDUE HARDSHIP
A. GENEAL OBSEVATIONS
Section () of the Federal Child Support Guidelines provides that a court may, on the ap-
plication 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 sect ions to , ,
or of the Guidelines if the court fi nds that the spouse or former spouse making t he appli-
cation, or a child in respect of whom the application is made, would suffer undue hardship
as a result of an order in an amount determined u nder those sections. Undue hardship may,
therefore, be invoked as a justification for deviating from the amount of child support pre-
scribed by the applicable provincial or territorial t able, or in cases involving child ren over
the age of majority under section ()(b) of the Guidelines, or for the pur pose of qualifying
the application of section of the Guidelines involving obligors with i ncome 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 stands in t he place of a parent may be affected
by a natura l or adoptive parent ’s child support obl igation, or to quali fy the application of
section of the Guidelines in cas es of split custody where each spouse has the custody of
at least one child of the marriage, or in cases of percent access or shared cus tody over
a period of a year under section of the Guidelines. In dev iating 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 otherwi se
be payable. e same high threshold test of “undue hardship” applies whether the payor or
Middleton v. MacPherson, [] A.J. No. (Q.B.); Lavoie v. Lavoie (Lillos), ABQB ; M.S. v. J.C.,
PESC (application by obligor).
Locke v. Goulding, NLCA .
Scharf v. Scharf, [] O.J. No. (Gen. Div.).
Kerr v. Kerr, [] B.C.J. No. (S.C.) (stringent test of undue ha rdship not satisfied); Locke v. Gould-
ing, NLCA ; compare Contino v. Leonelli -Contino, [] S.C.R. ; see Chapter , Section B().
CHILD SUPPORT GUIDELINES IN CANADA, 2017
the payee invokes section of the Guidelines but successful applications by payees are
rare. Courts should be cautious when a finding of undue hardship is being sought by the
recipient spouse because of the potential for abuse and should not permit section to be
invoked by the payee as an indirect vehicle for the payment of spousal support or for im-
posing 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 spousa l
support. ree potentia l issues arise pursua nt to section 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 undertaken, 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 fu nctions of a trial judge, not of an appellate court; in their absence, an
appellate court should remit the matter for reconsideration by the trial cour t.
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, [] B.C.J. No. (S.C.).
Saby v. MacInt osh, [] B.C.J. No. (S.C.).
Middleton v. MacPherson, [] A.J. No. (Q.B.); Saby v. MacInt osh, BCSC ; Jeans v. Jeans,
[] N.J. No. (U.F.C.); Williams v. Williams, [] N.W.T.J. No. (S.C.); Racette v. Gamauf, []
P.E.I.J. No. (T.D.); O’Hara v. O’Hara, [] S.J. No. (Q.B.). See also M.S. v. J.C., PESC at
para. .
Kehler v. Kehler, [] A.J. No. (Q.B.).
Smith v. Smith, [] A.J. No. (Q.B.); Swain v. Montanaro, ONSC at para. , Smith J.
Branch v. Branch, [] N.B.J. No. (Q.B.); Locke v. Gouldi ng, NLCA .
Brandt v. Brandt, [] N.J. No. (C.A.) (trial judge in er ror in failing to conside r faxed affidavit of
parent resident abroad; support order s et aside by appellate court, rehea ring ordered).
Galliford v. Galliford, [] B.C.J. No. (S.C.); Schmid v. Smith, [] O.J. No. (S.C.J.) (applica-
tion under Ontario Family L aw Act and Ontario Child Support Guidelines).
Ibid.
Chapter 7: 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, [] A.J. No. (C.A.); Kimmerly v. Henschel, ABQB ; Van Gool v. Van
Gool, [] B.C.J. No. (C.A.); L.C.T. v. R.K, BCCA ; Campbell v. Campbell, MBQB ; Turn er
v. Yer xa, [] N.B.J. No. (Q.B.); Locke v. Goulding, NLCA ; Pretty v. Pretty, NSSC ; Loc ke
v. Bramwell, NSSC ; Corbett v. McEachren, NSSC ; Cole v. Jerome, NWTSC ; Har vey v.
Sturk, ONSC ; Racett e v. Gamauf, [] P.E.I.J. No. (T.D.); Barber v. Barber, SKQB .
Corbett v. McEachren, NSSC citin g L.C.T. v. R. K., BCCA , para. .
C.W.T. v . K.A .T., ABQB ; X.(R. L.) v. X.(J.F.), [] B.C.J. No. (S.C.); L.C .T. v. R.K, BCCA
; Skorulski v. Zupan, MB QB ; Locke v. Goulding, NLCA ; Murphy v. Bert, NSSC ;
Swain v. Montanaro, ONSC ; Barber v. Barber, SKQB .
R.D .O. v. C.J .O., [] B.C.J. No. (S.C.).
Hanmore v. Hanmore, [] A.J. No. (C.A.); Scott v. Scott, [] B.C.J. No. (S.C.); Locke v.
Goulding, NLCA ; Tu tty v. Tut ty, [] N.S.J. No. (S.C.).
Ellis v. Ellis, [] N.S.J. No. (C.A.).
Badry v. Badry, [] B.C.J. No. (S.C.); Locke v. Goulding, NL CA ; S.M. v. R.P., [] Q.J. No.
(C .S.).
MacEachern v. Hardy, NSSC ; Ritchie v. Solonick, [] Y.J. No. (S.C.).
Alfaro v. Alfaro, [] A.J. No. (Q.B.); Tut ty v . Tut ty, [] N.S.J. No. (S.C.); Larkin v. Jamieson,
[] P.E.I.J. No. (S.C.).
Cole v. Jerome, NWTSC at pa ras. –, Shaner J., citing Bumpus v. Benoit, PESCTD .
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