An Ontario court recently reviewed a mother’s child support application in which a father claimed undue hardship and requested to pay less than the mother had asked for. While the court found that the father would suffer undue hardship if he were to pay the amount requested by the mother, the court ultimately concluded that “…the court’s sympathy for the father has its limits. The father created this situation. He keeps having children that he now claims he cannot afford.”

The Parties

The parties had a two-year old son together. They had never lived together, and the son had always lived with the mother. The father had been married to another woman (his wife) since 2010. He and his wife had two children (aged one and eleven).

The mother works as a retention officer earning approximately $55,000, with assets of $30,000 and debts of about $21,000.

The father works as a baggage technician at Pearson airport earning approximately $72,344. He owns his home (and has about $170,000 in equity) and has an RRSP of $40,000, as well as assets of $12,000, and debts of about $2,300 (other than mortgage). Based on his income, the Child Support Guidelines recommended a monthly child support payment of $677 monthly.

In her child support application, the mother asked that the father pay her $500 per month. The father pleaded undue hardship.

The Law on Undue Hardship

The Federal Child Support Guidelines stipulate that their objectives are as follows:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

Section 10 of the Guidelines governs undue hardship claims. Under that section, either spouse or the mother of a child can make an application to reduce a child support obligation.

Under s. 10(2), circumstances that may cause undue hardship include:

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

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

(c) the parent or 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;

(e)    the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;

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

In addition the above circumstances, the court must consider the standard of living of both spouses, with the ultimate goal being a similar standard of living at both households.

The Test to Establish Undue Hardship

Caselaw has established a three-part test that must be met by the individual seeking to estalblish undue hardship:

  • The person making this claim must show that there are circumstances that could create undue hardship.
  • If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party’s.
  • If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties.

In addition, the spouse seeking relief must show that the alleged hardship is exceptional, excessive, or disproportionate, not simply awkward or inconvenient.

It is the responsibility of the spouse seeking relief to provide sufficiency documentary evidence to establish the hardship.

The Decision

The court noted that the following circumstances would cause the father undue hardship:

  • He is currently the sole financial supporter of two children in his home;
  • He has a legal obligation to pay another child $450 monthly under a separate court order.

The court noted that this hardship was more than awkward or inconvenient. Rather, it was disproportionate. Moreover, an analysis revealed that the father had a lower household standard of living than the mother, which the court noted was “not surprising” given “… the father’s multiple support obligations”.

Despite finding that the father would suffer hardship if he were to pay the $500 per month requested by the mother, the court noted that:

…the court’s sympathy for the father has its limits. The father created this situation. He keeps having children that he now claims he cannot afford.

The court also went on to say:

The father is also asking the court to order minimal child support in order to maintain his current lifestyle. He is a homeowner, unlike the mother, who can only afford to rent. The father has options to meet his financial obligations. He has sufficient equity in his property to, if necessary, further increase his mortgage to meet his support obligations. He has the option of selling his home and clearing up his debts so that he has sufficient funds to meet his support obligations for the foreseeable future. It isn’t what he wants to do, but his child support obligations take priority.

The court concluded that in balancing these factors, the father should pay $450 per month in child support.

If you are a payor spouse and have questions about your child support obligations, or are a payee spouse and would like to increase the amount of child support you receive, contact Gelman & Associates.

Our highly experienced Toronto family law lawyers can ensure the best possible support arrangement for your children. In addition to our firm’s separation and divorce handbook and numerous web-based resources, all prospective clients are given a comprehensive family law kit during their initial consultation, with ample information and resources to help individuals understand and navigate the separation and divorce process. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.