Section 10 of the Federal Child Support Guidelines – Undue Hardship

This section of the Guidelines provides that a court may “award an amount that is different from the amount determined under the Guidelines, if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship”.   Although the Guidelines does not specifically define “undue hardship”, the court may consider that the following circumstances results in “undue hardship”:

– the spouse has an unusually high level of debts that was “reasonably incurred to support the spouses and their children prior to the separation or to earn a living”;

– the spouse has a “legal duty” under an Order, judgment or Agreement to support another person, to support a child (other than the child of the marriage), who is under the age of majority or over the age of majority and is still dependent;

– the spouse has unusually high expenses in relation to exercising access to a child;

However, even if the payor does have circumstances that result in “under hardship”, a court would not order an amount of support that is different than as set out in the Guidelines, if the payor’s household “standard of living” is greater than “standard of living” of the recipient.

When determining child support, proving undue hardship is difficult. The Ontario Superior Court of Justice in Morrone v. Morrone held that it is a “high threshold standard”. The hardship must be “exceptional, excessive, and disproportionate”. The burden of proof is on the payor.

The payor has to provide clear and persuasive evidence. High transportation costs for access or a second family is not sufficient in itself to demonstrate “undue hardship”.

It is clear from the case law that it is unusual for a payor to be successful in claiming that his/her support obligation should be varied due to “undue hardship”.

Although many payors claim that they cannot pay base support due to “under hardship”, it is my experience that this is a very hard test to meet.  The “standard of living” test must be analyzed with the assistance of a Toronto family lawyer. Please feel free to contact our divorce lawyers and we can discuss any issues you may have.