Every parent has an obligation to support their children. Generally, the parent who spends less time with the child pays child support. It is normally paid to the other parent.

This blog looks at the circumstances in which child support payments might be reduced because the paying parent is enduring undue hardship. We look at a recent case in the Ontario Court of Justice in which the paying parent argued for reduced support.

How are child support payments calculated?

There is an option to set up child support online or through a written agreement between the parents. Otherwise, a court can order the payment of child support.

A court calculates child support payments by using tables in the Child Support Guidelines (CSG). The presumptive amount depends on the paying parent’s gross income, number of children and province of residence. For example, a paying parent that earns $50,000, has two children and lives in Ontario owes $755 per month.

Have a look at our page here for some more information on child support payment calculations.

Can the paying parent ask for lower child support because of undue hardship?

Under section 10 of the Child Support Guidelines, a court may award a different amount if it finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

Circumstances that may cause such undue hardship include:

(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 parenting time with 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 under the age of majority, or 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.

Importantly, the CSG says that an application must be denied if the household of the paying parent would have a higher standard of living than the household of the recipient parent. If the court finds undue hardship, it can limit the time period during which lower support applies.

When does hardship meet the threshold for undue hardship?

It is difficult to establish undue hardship, with the court looking at three things:

• The paying parent needs to show that there are circumstances that could create undue hardship.
• The paying parent needs to show that their standard of living is lower than the recipient parent’s.
• If both of these are satisfied, 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.

Courts have required the paying parent to show that the hardship is exceptional, excessive or disproportionate, not merely awkward or inconvenient. The paying parent needs to provide adequate supporting documentation to prove the claim.

Paying parent makes an undue hardship claim, pointing to other child support, transportation costs and inability to buy home

In Lobban v Lobban, the parties separated in 2017 with the claimant living in British Columbia, while the respondent lived in Ontario. They have 15 and 17-year-old children that live with the claimant, and an adult child. The parents both have 22-year-old children from other relationships.

The claimant sought child support for the parties’ 15 and 17-year-old children in a British Columbia court. The case was transferred to Ontario when it was determined that the respondent lived in Toronto.

The respondent’s annual income has steadily increased over the years to a projected amount for 2022 of $125,000. Applying the CSG table for two children results in payments of approximately $1,780 per month.

The respondent asked the court to order child support for $550 per month. He claimed that he continues to pay support for his 22-year-old child who is in her last year of college, will have high transportation costs visiting his children in British Columbia, and that he cannot afford to purchase a home and currently lives with his family.

Court dismisses claim of undue hardship, finding no exceptional, excessive or disproportionate hardship

Justice Sherr noted that the respondent was paying far less child support for his 22-year-old than he should. That support was based on a 2008 court order and was premised on his earning an annual income of $37,000. The payments have often been in arrears as well. His Honour also observed that the respondent has not travelled to British Columbia to see his children since the separation in 2017.

His Honour held that none of these factors are sufficient to establish undue hardship because they are not exceptional, excessive or disproportionate. Furthermore, the respondent did not lead any evidence that his standard of living was lower than the claimant’s.

Justice Sherr dismissed the respondent’s claim of undue hardship. His Honour ordered the respondent to pay retroactive child support to 2018, with a credit for support already paid. His Honour ordered ongoing support in the amount of $1,780 per month.

Contact NULaw in Toronto for advice on Child Support

Contact NULaw early in your separation to understand your rights and obtain the best possible child support arrangement for your children.

NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters. We help our clients reach fair and efficient solutions to all of their separation and divorce issues, including spousal support and property division. Contact us online or at 416-481-5604 to book a consultation.