Tight is not the same as undue. That distinction sits at the centre of this topic, and it disappoints many of the parents who come across the idea online. Nearly everyone who pays child support after separation feels the squeeze, since two homes cost more than one. The law does not treat that squeeze as a reason to lower the amount. It reserves the undue hardship rules for a narrower group of situations in which paying, or receiving, the normal amount would produce a result that is out of line with what the guidelines are meant to do.
Knowing the test before you spend money on a motion may save you a good deal of frustration. It may also help a parent on the other side of such a claim understand what they should ask for and what they should check.
This article is general information, not legal advice. The hypothetical scenarios are simplified, and a real claim will rest on detailed financial evidence.
Where the rule comes from
Child support in Ontario normally follows a table. You look up the paying parent’s income and the number of children, and the guidelines give a monthly figure. The goal is to make outcomes predictable and consistent.
Section 10 is the safety valve. It appears in both the Federal Child Support Guidelines, which apply in divorce cases, and in the Ontario Child Support Guidelines, which apply to most other cases, such as parents who were never married. The wording differs slightly, but the structure is the same. A court may award a different amount if the parent making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
Two details of that wording are easy to miss. First, either parent can raise it. A parent receiving support can ask for more, if the table amount would cause hardship to them or the child, though most claims come from payors. Second, it can be used in respect of amounts under sections 3 to 5, 8 or 9 of the guidelines, including the table amount, while claims for section 7 special expenses are considered under their own test.
Step one: a circumstance that may qualify
Section 10(2) lists examples of circumstances that may cause undue hardship:
- Unusually high debts. Debts reasonably incurred to support the family before separation, or to earn a living.
- Unusually high expenses for parenting time. A parent’s real costs to exercise time with the child.
- A legal duty under an order, judgment or written separation agreement to support any person.
- A legal duty to support another child. That covers a child who is not part of this case and is under the age of majority, or older but unable to obtain the necessaries of life because of illness, disability or another cause.
- A legal duty to support someone who cannot obtain the necessaries of life because of illness or disability.
The list says “include,” so it is not closed. Other circumstances can qualify in principle, but a court will want to see a comparable level of seriousness.
Look carefully at the adjectives. It has to be an “unusually high” level of debt, and the debt must have been “reasonably incurred.” A family’s usual car loan and a credit card balance do not ordinarily meet that test. A hypothetical contractor who was left with $140,000 of loans for tools and a truck, taken on to earn the income that supports the child, may present a stronger case, especially if the former partner walked away from any share of those liabilities.
Parenting time works in a similar way. If you live near Bramalea and your child lives in Mississauga, the gas and the driving time are simply part of life. If the child has moved with the other parent to Calgary, and your parenting schedule means regular flights, you may have a stronger claim, particularly if the other parent made the choice to move and the expense is large in comparison to your income.
Note the words “legal duty” as well, since they matter in many Brampton households. A parent may send money every month to elderly parents in Punjab or to a sibling in Jamaica out of love and obligation. That is admirable, but it may not be a legal duty, and it is not the same as a duty recognized by an order or by legislation. A person claiming hardship based on supporting a relative will have to show the legal basis, as well as the relative’s inability to provide for themselves. A sponsorship undertaking may raise a separate question, which should be reviewed with a lawyer.
Step two: is the hardship truly undue?
Finding a listed circumstance does not end the matter. The court still has to be satisfied that the resulting hardship is undue. Courts have described this as a high threshold, using words like exceptional, excessive or disproportionate. The focus is on the impact of the circumstance on this parent’s ability to pay at this income level, rather than a general sense of being short of money.
A court may also ask what you could reasonably do to improve your own position. Have you refinanced? Are you working to your capacity? Have you chosen an expensive vehicle or home? Did you take on debts after separation? A parent who has taken on a large mortgage for a bigger home or who has reduced work hours is unlikely to be seen as a sympathetic candidate. Courts can also impute income to someone who is intentionally underemployed, which would undercut the claim altogether.
Step three: the standard of living comparison
This is where most claims run aground. Under section 10(3), even if there is undue hardship, the application must be denied if the claimant’s household would have a higher standard of living than the other parent’s household, after the table amount is applied.
Schedule II of the guidelines offers a comparison test, and section 10(4) says a court may use it. In simple terms, the steps are:
- Work out the after-tax income of each person in each household.
- Adjust those incomes by deducting items such as child support, spousal support and the amount relied on for the hardship claim.
- Find the low-income measure for each household, based on its size.
- Divide household income by that measure to get a ratio for each household.
- Compare the two ratios.
The result can surprise people, and the reason is the definition of a household. It is not limited to you and your children. It may include a person who owes you a duty of support, or a person who shares living expenses with you or gives you an economic benefit by living with you, if the court considers that reasonable.
That is why new relationships can change things. Consider a hypothetical father who earns $70,000 and is supporting two children from a second relationship. It seems that he has a good claim. However, if his new partner earns $110,000 and lives with him, his household’s standard of living may easily exceed that of his former spouse, who is raising their child alone on $45,000. The claim would then fail, even if the other parts of the test are met.
Multi-generational living can raise the same issue in the other direction. A parent sharing a home with adult relatives who pay part of the mortgage may have to explain whether those people belong in the comparison. Be ready with real numbers about who lives in the house, what they earn and what they pay.
What the outcome looks like
If you succeed, a judge has discretion and does not have to give any particular reduction. The judge must record reasons for the different amount, under section 10(6). The order must also show that amount clearly, and may set a limit. Section 10(5) lets a court specify a reasonable time for the satisfaction of the obligation that caused the hardship, and state the amount payable at the end of that time. For example, a reduction tied to a debt may end when the debt should be paid off, and the table amount would then resume. An order of this kind does not always last forever.
A hardship claim is also not a defence against money already owing. If you are behind, keep in mind that arrears accumulate, and the Family Responsibility Office enforces the order as written unless a court changes it.
What your evidence should cover
These motions are won and lost on paper. If you are claiming hardship, expect to prepare:
- a current sworn financial statement (Form 13 or 13.1, depending on the case), with income, expenses, assets and debts
- three years of tax returns and notices of assessment
- loan agreements and statements, showing when each debt arose, what it paid for and what balance remains
- proof of parenting time costs: flight bookings, mileage logs, accommodation receipts and the parenting schedule that requires them
- orders or agreements that create other support duties, along with proof that you are complying with them
- income information for every adult in your household
- a completed Schedule II calculation, usually prepared using family law software
Do not be surprised if the other parent asks for more. Claimants have to open up their finances, including those of a partner where relevant, and a selective picture can damage your credibility. If you are reluctant to disclose your household’s finances, that is worth discussing with counsel before you start, as the claim may not be worthwhile.
If you are on the receiving end of a hardship claim, check these things first: is the debt truly unusual, was it taken on before separation or to earn a living, has the claimant disclosed everyone in the household, is the claimant actually paying the other obligation they rely on, and is the Schedule II math correct? Also consider whether a reduction would leave your child at a real disadvantage, and be prepared to show the effect with your own budget.
Other routes that may fit better
Because the test is so demanding, other options are often worth considering before or alongside a hardship claim.
Change the income figure. If your income has dropped, the proper route may be a motion to change on the basis of a change in circumstances rather than hardship. Your support may fall with the income.
Look at the parenting schedule. A parent who has the child at least 40 per cent of the time over a year may fall under section 9, the shared parenting rule, which calculates support differently. A schedule should be set for the child’s benefit and not for the sake of a calculation, but the true schedule should be reflected.
Review section 7 expenses. Special or extraordinary expenses are shared based on income, under a separate reasonableness test. A contested activity or tuition cost can be addressed there.
Negotiate a payment plan for arrears. If arrears are the crushing part, the Family Responsibility Office may be willing to discuss a repayment arrangement, and doing so early is better than waiting for enforcement.
Deal with the debt directly. A consumer proposal or debt consolidation can sometimes ease cash flow, though support obligations generally survive bankruptcy.
Consider a negotiated amount. Parents can agree on a different amount, but the court must still be satisfied that reasonable arrangements have been made for the child, especially when the figure is below the table. An explanation should be written into the agreement or consent order.
Before you file
Do a rough standard of living comparison before anything else. If your household comes out ahead, you may be able to spare yourself a costly motion. Keep paying the current order in the meantime, because stopping can only make your position worse, and any request for relief may be measured against your behaviour.
The motion itself would generally be brought in the court that made the order, and in Brampton both levels of family court sit at 7755 Hurontario Street. Our overview of child and spousal support gives more context on how support is set. If you would like a realistic look at your numbers before committing to a motion, you can reach out to our office to arrange a conversation.