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.