Undue hardship

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 337-371



 

UNDUE HARDSHIP

A. GENERAL OBSERVATIONS

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 sec tions  to , ,

or  of the Guidelines if the court f‌i nds that the spouse or former spouse making the 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 children over

the age of majority under section ()(b) of the Guidelines, or for the purpose 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 chi ld support obligat ion, or to qualify t he 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 ca ses of  percent access or shared custody over

a period of a year under section  of the Guidelines. I n 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  of the Guidelines but successful applications by payees are

 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 hardsh ip not satisf‌ied); Locke v. Gould-

ing,  NLCA ; compare Cont ino v. Leonelli-Contino, []  S.C.R. ; see Chapter , Section B().

 Suian v. Suian, [] B.C.J. No.  (S.C.).

 CHILD SU PPORT GUIDELINES IN CA NADA, 

rare. Court s should be cautious when a f‌inding of undue hardship is being soug ht 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 spousal

support. ree potential issues arise pursua nt to section  of the Federal Child Support

Guidelines when undue hardship is pleaded, namely

a) whether undue ha rdship exists;

b) whether a comparison of the sta ndard of living in each household precludes the exer-

cise of judicial di scretion; and

c) how the court should exerci se its discretion.

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 under taken, including

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

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

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

the trial court .

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

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 Guidelines

must be deferred until the matter of spousal s upport has been determi ned. e amount of

spousal support to be paid and received must then be ta ken into account in comparing 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 the requi rements 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 dis cretion to deviate from the Guidelines. Undue hardship is

 Saby v. MacIntosh, [] B.C.J. No.  (S.C.).

 Middleton v. MacPherson, [] A.J. No.  (Q.B.); Saby v. MacIntosh,  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.).

 Branch v. Branch, [] N.B.J. No.  (Q.B.); Locke v. Goulding,  N LCA .

 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.

Undue Hardship 

a tough threshold to meet. Furthermore, 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 little judicial guida nce on when this residual discret ion 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 and cogent

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

the Guidelines is only avai lable where excessively hard living conditions or severe f‌ina ncial

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 expenses

and thereby a lleviate hards hip. In the absence of the circumstances that const itute “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 because of other f‌i nancial

commitments that fall short of const ituting “undue hardship” within the mea ning 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 hardsh ip 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, although circumstances may

arise where t his is t he appropriate disposition. Where the obligor has a low income, a

court may order a modest amount of child support as a “symbolic” gesture to rein force the

parental role,  but such an order may be deemed unnecessary i n light of the attendant cir-

cumstances of the par ticular case.

In its f‌inal report on chi ld support guidelines, the Federal/Provincial/Territorial Family

Law Committee suggested that a cour t would only make a f‌inding of undue hardship i n

lower income families because non-custodi al parents with higher incomes would rarely

 Hanmore v. Hanmore, [] A.J. No.  (C.A.); C.W.T. v. K .A.T. ,  ABQB ; Van Gool v. Van Gool,

[] B.C.J. No.  (C.A.); Anderson-Devine v. Anderson, [] M.J. No.  (Q.B.); Turner v. Yerxa,

[] N.B.J. No.  (Q.B.); Locke v. Goulding,  NLCA ; Prett y v. Pretty,  NSSC ; Williams v.

Steinwand,  NWTSC ; Morrone v. Morrone, [] O.J. No.  (S.C.J.); Racette v. Gamauf, []

P.E.I.J. No.  (T.D.); Barber v. Barber,  SKQB .

 C.W.T. v. K.A .T.,  ABQB ; X.(R.L .) v. X.(J.F.), [] B.C.J. No.  (S.C.); Skorulski v. Zupan, 

MBQB ; Locke v. Goulding,  NL CA ; Murphy v. Bert,  NSSC ; Swift v. Swift, [] O.J. No.

 (Gen. Div.); 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,   NLCA ; 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.); Tutt y v. Tu tt y, [] N.S.J. No.  (S.C.); Larkin v. Jamieson,

[] P.E.I.J. No.  (S.C.).

 Dixon v. Fleming, [] O.J. No.  (S.C.J.).

 Larkin v. Jamieson, [] P.E.I.J. No.  (S.C.).