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Child Support - Undue Hardship

Child Support: Undue Hardship

As discussed in the previous blog on child support, child support is generally seen as a non-negotiable support payment in the eyes of the court.  However, there are ways to alter child support payments.  This can be done through either a shared custody arrangement (see our blog post here), or by proving undue hardship.

S. 10(1) of the Federal Child Support Guidelines (the “FCSG”) provides an outline for how to approach an argument for undue hardship and also provides that either spouse may apply for it.  Just remember that whoever makes the claim has the onus of proving the claim (see caselaw Nishnik v. Smith (1998) 162 Sask.R. 200 (Q.B.)).

S. 10(2) of the FCSG provides the circumstances that courts will recognize as causing undue hardship:

(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

(b) the spouse has unusually high expenses in relation to exercising access to a child;

(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and

(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

As can be seen, the language here demonstrates that there must be a SIGNIFICANT type of burden placed on the spouse advancing the argument for undue hardship.  Even if the court agrees that there is undue hardship, they must still factor that with s. 10(3) of the FCSG which provides that the application must be denied if the court is of the opinion that the household of the spouse claiming the undue hardship is of a higher standard of living than the household of the other spouse.  It is not just hardship that must be proved, but UNDUE hardship (see Wislesky v. Wislesky (1999), 47 R.F.L.(4th) 208 (Ont.Ct.Gen.Div.)).

This means that all persons who reside with the spouse would likely have to be involved in the investigation as to whether there is an undue hardship; meaning their financial information would likely have to be produced.

See below for examples from caselaw regarding undue hardship:

Undue Hardship established:

Trebilcock v. Trebilcock, 2012 ONCA 452

  • Father appealed an order for lump sum child support of $150,000 – this support was based on his income of $75,000 which the Father contested
  • Mother made a claim for undue hardship and was successful
    • Mother was disabled, raising the children, children were reaching post-secondary education age, and she was on social assistance
    • Mother also received no support from the father since 2001
    • Father had received a large inheritance and dissipated a portion of his assets

Schaan v. Schaan, [2000] B.C.J. No. 61 (S.C.),

  • split custody between the parents
  • mother made claim for undue hardship
    • she was unemployed, blind, and her expenses exceeded her income
    • additionally, it was expected that her rent would increase in the near future

Scharf v. Scharf (1998), 40 R.F.L.(4th) 422 (Ont.Gen.Div.),

  • father applied for variation of child support
  • each party had one child in their care
  • the Child Support Guidelines (“CSG”) indicated that the mother should receive $60 instead of the $200 she was receiving
  • mother claimed undue hardship for daughter who was living with her
  • father didn’t see daughter often, mother had to take unpaid time from work due to daughter’s health problems
  • court found that mother would suffer undue hardship if only paid the guideline amount as the standard of living in her household was lower than that of the father’s

 

Undue Hardship NOT established

Ignacy v. Ignacy, 2005 CanLII 44413, [2005] O.J. No. 5264 (S.C.J.)

  • mother had custody of both daughters
  • sought child support higher than CSG provided due to undue hardship or in alternative an order for spousal support
  • Her gross income was $66,640 and father’s was $127,286
  • Court rejected her claim arguing that CSG amounts were not to be lightly interfered with
  • No allegation that children were not properly clothed or fed, no physical or emotional problems requiring extra time and expense to mother
  • Disparity in household income existed, but it was not significant
  • Mother did receive spousal support

Block v. Baltimore (2000), 5 R.F.L.(5th) 18 (Man.Q.B.)

  • father applied to have child support varied on basis that bother children were no longer dependent
  • mother argued she would suffer undue hardship if order was varied
  • claimed she would have to sell home, her costs were increased due to father’s failure to exercise access and that children would suffer
  • court ruled that although there was hardship, it was not UNDUE hardship
  • ultimately the court reasoned that they would be awarding her spousal support instead of child support

Suain v. Suain (2002), 29 R.F.L.(5th) 234 (B.C.S.C)

  • Father sought a reduction in child support since he had just started on long-term disability benefits
  • Mother had no employment income
  • court ruled that since the CSG does not take into account the recipients income, that fact alone was not enough to create undue hardship
  • court found there were no circumstances that made the Mother’s situation exceptional in this case

 

Caselaw

  1. Nishnik v. Smith (1998) 162 Sask.R. 200 (Q.B.).
  2. Wislesky v. Wislesky (1999), 47 R.F.L.(4th) 208 (Ont.Ct.Gen.Div.)
  3. Trebilcock v. Trebilcock, 2012 ONCA 452
  4. Schaan v. Schaan, [2000] B.C.J. No. 61 (S.C.),
  5. Scharf v. Scharf (1998), 40 R.F.L.(4th) 422 (Ont.Gen.Div.),
  6. Ignacy v. Ignacy, 2005 CanLII 44413, [2005] O.J. No. 5264 (S.C.J.)
  7. Block v. Baltimore (2000), 5 R.F.L.(5th) 18 (Man.Q.B.)
  8. Suain v. Suain (2002), 29 R.F.L.(5th) 234 (B.C.S.C)

This post is provided for the purposes of legal information only and is not to be construed as legal advice.

Child Support

Child Support

One of the major issues at separation is how much child or spousal support will be paid from one spouse to the other.  This can often become very contentious between separating spouses as it can greatly impact both of their finances.

The Family Law Act (“FLA”) recognizes that each parent has an obligation to provide support for the children in accordance with the Child Support Guidelines, and that spousal support should recognize each spouse’s contribution to the relationship (see ss. 33(7) and (8) of the FLA).  This is to ensure that there are fair provisions to assist a spouse to contribute to their own support after the relationship ends.

Both types of support can be paid to married AND Common Law partners.  See our previous blog post regarding the differences between Married and Common law partners to learn more here.

This post will focus on child support.  See our next family law post for information on how spousal support is determined.

 

Child Support

Courts generally consider child support non-negotiable.  This is a right of the child and can be enforced strictly to ensure that children are properly taken care of.  This child support is meant to cover things like food, clothes and other essentials for the child’s well-being.  Additionally, parents can be required to split extraordinary expenses or s. 7 expenses.  These can be payments for things like after school programs or health related expenses.

Child support is determined by:

  1. The number of children;
  2. The province or territory where the paying parent lives; and,
  3. The paying parent’s before tax annual income.

These factors help us determine the “table” amount of child support to be paid.  A very rudimentary and approximate formula used to determine this support amount is to pay 10.8% of your monthly Gross income for one child (“the initial amount”).  If you have multiple children, you multiply the initial amount by the following approximate amounts:

  • 1.6 for 2 children
  • 2.1 for 3 children
  • 2.5 for 4 children

Of course this only gives you a ballpark figure and is not completely accurate as the factors in the formula are slightly adjusted as income changes.

For a more accurate answer, follow this link and plug in your details to determine what child support could be paid from one spouse to the other.

As of the date of this post, and according to the calculator provided in the link above, a parent living in Ontario with an annual income of $60,000 and 2 children would pay $915.00 per month in child support.

This takes into account the fact that both children reside in the same home.  If a parent has multiple children with multiple partners who all live in different households, you restart the calculation for each household.  As an example, using the above facts again, a father paying support to two different mothers would pay $556 per month to each mother, rather than $915 split between them both.

Considering that child support is the right of the child and necessary to ensure they are supported throughout their development, it is understandable why courts are so strict in enforcing the table amounts of support.  However, child support can change depending on certain factors.  Generally, child support is paid to the parent who has the child the most.  Yet should this residency arrangement be that one parent has the child 40% of the time and the other parent has the child 60% of the time, then child support payments can be reduced.

Another reason why child support could be reduced is as a result of the paying parent suffering an undue hardship.

 

Undue Hardship

S. 10 of the Federal Child Support Guidelines provides a means for parents to apply to change the set amount of child support if the parent or a child in respect of whom the request is made would suffer undue hardship.

Circumstances that could cause a spouse or child to suffer undue hardship can include:

  1. responsibility for an unusually high level of debt incurred to support spouses and children prior to separation or to earn a living
  2. unusually high expenses in relation to exercising access to a child
  3. a legal duty under a judgment, order or written separation agreement to support any person
  4. a legal duty to support a child, other than a child of the marriage
  5. a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability

 

Is there a deadline for Apply for Child Support?

There is no limitation period for applying for child support that has been ordered by a court or that was to be paid as a result of a written agreement.  The problem arises when parents attempt to apply for child support without any court order or agreement in place.  Under s. 31(1)  of the FLA, every parent has an obligation to pay support for a child of the relationship if the child is:

  1. Unmarried;
  2. A minor;
  3. Enrolled in a full time program of education; or
  4. Unable by reason of illness, disability or other cause to withdraw from charge of their parent.

So generally, if the child is over 18 and self-sufficient, it is very unlikely that a court would make an order for child support.

The parent may be successful in a claim for retroactive child support.  The general rule is that retroactive child support can be ordered back to three years before the child support recipient can prove that they asked for child support, or that child support should be changed.  Keep watch on our blogs for a future post related to the topic of retroactive child support for more details.

Speaking with a legal representative about the support issues involved in your specific situation is a great way to ensure you can plan for your future.  Contact Rabideau Law to see how we can help you.