Can child support be reduced for undue hardship in Ontario?

Yes, but rarely. Under section 10 of Ontario's child support guidelines, a court may order a different amount if the parent or child would otherwise suffer undue hardship. The parent must prove the hardship, and the request must be refused if their household would still have a higher standard of living than the other parent's household.

How an undue hardship claim works in Ontario

The child support table amount is designed to be predictable, and courts depart from it only in limited cases. Undue hardship is one of them. It lets a court lower (or, in theory, raise) child support when paying the guideline amount would cause real hardship that goes beyond the ordinary strain every separated family feels. For how the normal amount is found, see how child support is calculated in Ontario. For the bigger picture, see our child and spousal support page.

Section 10 of the Ontario Child Support Guidelines sets out a two-stage test. The Federal Child Support Guidelines contain the same test for divorces.

1. Stage one: hardship. The parent asking (or a child) must show that the guideline amount would cause undue hardship. Section 10(2) lists circumstances that may cause it.
2. Stage two: standard of living. Even if hardship is shown, the court must deny the request if the claimant's household would, after paying the guideline amount, have a higher standard of living than the other household (section 10(3)).
3. The comparison test. The court may use the household standard of living test in Schedule II to compare the two homes (section 10(4)).
4. Discretion. If both stages are met, the court may set a different amount. It is not required to.
5. Time limits and reasons. The court may set a reasonable time for the hardship to be dealt with and the amount payable after that (section 10(5)), and must record its reasons (section 10(6)).

Undue hardship can be raised against the table amount, the amount for children 18 and over, a split or shared parenting amount, or an amount set for a person standing in the place of a parent (it applies to amounts under sections 3 to 5, 8 or 9).

Circumstances the guidelines list

The list uses the word "include", so other circumstances can qualify, but they must be comparable in seriousness. The word "unusually" in the first two items matters: ordinary debts and ordinary travel do not meet the test.

How the standard of living comparison works

Schedule II compares the two households, not just the two parents. A "household" includes the parent and people living with them who have a support relationship with the parent, people who share living expenses or provide an economic benefit if the court considers it reasonable to include them, and the children any of them must support.

The test then follows four main steps. First, each person's annual income is worked out under the guidelines, less income tax and Employment Insurance and Canada Pension Plan deductions. Second, each income is adjusted for the amounts behind the hardship claim and for child and other support paid or received. Third, the adjusted incomes of everyone in each household are added together. Fourth, each household's total is divided by a "low-income measures" amount set in the schedule for its size and makeup, giving a ratio. The household with the higher ratio has the higher standard of living.

This is why a new partner's income can defeat a hardship claim. The paying parent's own income may be modest, but if they live with a partner who shares expenses, the household ratio can be higher than the other parent's.

What evidence a court expects

An undue hardship claim is won or lost on paper. The parent asking has to show both the hardship and the household comparison, so the evidence needs to be complete before the request is made.

• For debts: statements showing the balance, when each debt was taken on, what it paid for, and the monthly payments. A short explanation linking each debt to the family's needs during the relationship, or to earning a living, ties it to section 10(2)(a).
• For parenting time costs: receipts for flights, fuel, accommodation and other travel, with a calendar showing the visits they relate to.
• For other support duties: the order, judgment or written agreement that creates the duty, and proof of payments made under it.
• For the household comparison: income information for every person in the claimant's household, and whatever is known about the other household. Where information about the other household is not provided, Schedule II lets the court impute income.
• For the budget: a realistic monthly budget and the financial statement required in the court process.

It also helps to show what has already been done to reduce the hardship, such as refinancing, selling an asset, or finding cheaper ways to travel for parenting time. Because the court may set a time limit on any reduction (s. 10(5)), a realistic plan to resolve the hardship is useful too.

What changes the answer

• Whose debts and why (s. 10(2)(a)). Debts must be unusually high and reasonably incurred for the family during the relationship or to earn a living. New debts taken on after separation for personal spending rarely qualify.
• Accurate income for both homes. The comparison depends on reliable income figures, including any imputed income; see what counts as income for support.
• Other support duties (s. 10(2)(c) to (f)). A second family is a listed circumstance, but the court still compares household standards of living.
• Shared parenting and special expenses. The guideline amount the hardship is measured against may already include special or extraordinary expenses. It may also reflect a shared schedule; see child support with shared parenting.
• Adult children. For a child 18 or over, the court already has flexibility under section 3(2), which can make a hardship claim unnecessary; see child support after 18.
• Disclosure. A parent who pleads undue hardship triggers disclosure obligations for the receiving parent too (section 21(3)), and must keep the court's information current; see yearly income disclosure.

A worked example

For example, imagine a parent who moved from Toronto to another province for work after separating. Their child lives with the other parent in Toronto. To exercise parenting time, the parent flies the child out four times a year, at a cost of several thousand dollars. The paying parent lives alone and earns $70,000. The other parent earns $52,000 and lives with a new partner who earns $80,000.

The travel costs may be "unusually high expenses in relation to exercising parenting time" under section 10(2)(b), so stage one could be met. At stage two, the court compares households. The other parent's household includes the new partner, whose income adds to that household's total. If the other household's ratio is higher, the paying parent's household does not have the higher standard of living, and the court may consider a reduced amount. It might also set a time limit, for example while the travel arrangement continues. If the comparison went the other way, the request would have to be refused regardless of the travel costs.

This example is hypothetical and simplified. Real Schedule II calculations require tax figures for each person.

Common mistakes with undue hardship claims

• Treating hardship as ordinary budget strain. Feeling stretched after separation is common. The test asks for undue, often unusual, hardship.
• Forgetting the household test. Many claims fail at stage two because a new partner's income lifts the claimant's household.
• Not proving the debts. Statements showing when, why and for whom the debt was incurred are essential.
• Stopping payment while the claim is pending. The existing order stays in force until changed, and arrears can be enforced; see retroactive child support for how courts look back at past periods.
• Raising it without full disclosure. A hardship claim invites scrutiny of income, expenses and household members.
• Expecting a permanent change. The court may limit any reduction to a set time (s. 10(5)).

What to do this week

1. List the circumstance you rely on and match it to section 10(2) or explain why it is comparable.
2. Gather proof: loan statements, travel receipts, orders or agreements for other support duties.
3. List everyone living in your home and their income, and do the same for the other parent's home if you know it.
4. Keep paying the current amount and keep proof of every payment.
5. Collect your last three tax returns and notices of assessment.
6. Book a free consultation with us to run the household comparison before you file anything.

Frequently asked questions

Can the receiving parent claim undue hardship?

Yes. Section 10(1) allows either parent, or an applicant under section 33 of the Family Law Act, to ask, and the hardship can be the child's. In practice most claims are made by paying parents.

Does having a second family automatically reduce support?

No. A legal duty to support other children is a listed circumstance, but the claimant's household still must not have the higher standard of living, and the court still has discretion.

Can I claim undue hardship in an agreement instead of court?

Parents can agree on a different amount, and a court may approve it on consent if reasonable arrangements have been made for the child (Family Law Act, s. 33(14)). The guidelines remain the reference point.

How long does a reduction last?

As long as the court orders. Section 10(5) allows the court to set a reasonable time for dealing with the circumstance and the amount payable at the end of it.

Will the court explain its decision?

Yes. When the court orders a different amount because of undue hardship, it must record its reasons (s. 10(6)).

Can a later change undo the reduction?

If the circumstances behind the hardship change, either parent may seek a variation. The same applies to spousal support terms; see changing or ending spousal support.

Sources

• Ontario Child Support Guidelines, O. Reg. 391/97 (ss. 3(2), 10, 21(3), Schedule II)
• Federal Child Support Guidelines, SOR/97-175 (s. 10, Schedule II)
• Family Law Act, R.S.O. 1990, c. F.3 (s. 33(14))