Paradox because the Federal law, in Canada, that allows a child support payor to plead undue hardship and, in very limited but ultimately very reasonable circumstances have child support discounted, has been beaten black and blue by the Courts.

Truer words have rarely issued from Canadian courts of law than these of Ontario High Court Justice Robertson in Swift v Swift:

"Undue hardship is a tough threshold to meet."

Thus, note to litigants: the Courts do not like undue hardship applications and there tends to be a heavy onus on any such application; an onus that appears nowhere in the statute but is entirely judge-made.

The recipe for an undue hardship is simple and clear (§10, Federal Child Support Guldelines):

"On either spouse’s application, a court may award an amount of child support that is different ... if the court 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 a spouse or child to suffer undue hardship include the following:

  • 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;
  • The spouse has unusually high expenses in relation to exercising access to a child;
  • The spouse has a legal duty under a judgment, order or written separation agreement to support any person;
  • 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 the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
  • 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.

"Despite a determination of undue hardship ... an application ... must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would ... have a higher standard of living than the household of the other spouse."

The "math" here is simple. There is a double-burden:

  1. First, the payor must establish that he or she fits under one of the five categories of undue hardships - and even that list is not intended to be exhaustive.1
  2. Then, she (or he) has to ward against the allegation by the recipient that discounting child support, notwithstanding undue hardship, would create a discrepancy in the standard of living in the two households.

Waxing Eloquent

Of course, with a relatively newborn statute (the Guidelines became law in 1997), and of such significance, the judges could not help themselves but to feel that they needed to flesh it out by some pretty, statements of principles. Section ten of the Child Support Guidelines (undue hardship) proved a particularly fertile breeding ground for this judicial activism.

undue hardshipThe most important element of judicial intervention was intended by the statute: the rule of law that even if a payor meets both tests, that he or she puts forward a qualifying undue hardship, and shows that without a discount, there would be disparate standards of living, the actual amount of the discount is a matter of judicial discretion. In other words, you could come off the battle field of family litigation, bleeding and injured but still standing, just to be told you won and here's your $1 prize.

Again, quoting from Swift:

"The use of the word may in §10 of the Guidelines clearly shows that any digression from the guidelines even after a finding of undue hardship and a reduced standard of living is discretionary."

Other cases followed suit striking hard, fast barbed-wired around the relief set out at §10 of the Child Support Guidelines. Justice of the Saskatchewan Court of Queen's Bench in Messier v Baines:

"Second families, and the associated legal duty to support a child of that family, are not uncommon.  The assumption of such new obligations may by necessity create a certain degree of economic hardship.  That hardship is not however necessarily undue

"Similarly, the mere fact that an applicant's household standard of living is lower than that of the other spouse, due in part to the applicant's legal duty to another child, does not automatically create circumstances of undue hardship."

One case published by the Court of Appeal of British Columbia not long after the Guidelines were issued was extremely rough on these applications, borrowing from scholarly articles in its decision, and setting the tone which continues today:

"The requirement that the hardship be undue signifies that a stringent criterion will be applied.  Some degree of economic hardship may be the inevitable consequence of separation and divorce.  In order to meet the requirements ... the hardship must be exceptional or excessive, rather than the inevitable consequence of dividing limited resources between two households.  The use of the term undue implies something more than the hardship that ensues from a lower standard of living after divorce....

"The threshold for a finding of undue hardship is high. Hardship is not sufficient; the hardship must be undue, that is, exceptional, excessive or disproportionate in all of the circumstances.

"The onus is on the party applying under §10 to establish undue hardship; it will not be presumed simply because the applicant has the legal responsibility for another child or children and/or because the standard of living of the applicant's household is lower than that of the other spouse. The applicant must lead cogent evidence to establish why the table amount would cause undue hardship."2

This judge-made very, very high standard for a successful undue hardship application is not just dust in the law library. It is a living, breathing judicial attitude, affecting legitimate claimants coast to coast.

Consider that the Federal Parliament proclaimed child support guidelines that state, and nothing more, that undue hardship may exist where, for example, there are high costs associated with access.

Well, to this we now have judicial wisdom yet so severe that for most, the practical effect of the access cost exemption may as well not exist (access costs are the transportation costs associated with access):

  • $3,500 in annual access costs: not enough (Bryne);
  • $1,500 annually: not enough (Pollock v Rioux)
  • $190 to $250 per trip four to six times a year: not enough (Wilson;
  • Access costs of $300 a month: not enough (Sutherland) and
  • $350 access costs a few times a year: not enough (Llewellyn).

To be fair, some of the payors in the above example had some decent annual incomes (e.g. Pollock v Rioux) but in Llewellyn, for example, the payor had just over $1,200 a month in net income to ground his undue hardship application.

This judicial pigheadedness has spilled over all of the grounds Parliament gave for undue hardship applications.

One particularly chilling example is McPhee, in which the payor, a postie on a modest income, wanted an undue hardship finding so that he would not have to cut back on what he could provide his daughter with his new partner. The Court deined the application, honing-in on the fact that the payor's new wife had chosen to be a stay-at-home mother with the financial consequences that flowed from that:

"The father and his common law wife have made a lifestyle choice that she would stay home and look after their child."

The patriarchal and patronizing judicial attitude of favouring a first family over the needs of a second may be showing signs of abating, pushed no doubt by the change in society and the frequency of payors going from second and even into third families in one lifetime.

 In Miller v Ufoegbune, the Court acepted an undue hardship application by a payor who had three children in a new relationship.

Ouch!

Still, circa 2011, there is simply no getting around the extremely high threshold the courts have built around the undue hardship provisions of Canada's Child Support Guidelines. Except for judges who would issue self-serving claims that these words do not do the law justice, or lawyers who have lost their spark in the glare of judicial deference, what quacks like a duck and walks like a duck is duck - the plain and simple fact is that judges have made the undue hardship applications not just tough, but very, very tough.

One had better have two solid grounds to base the claim, and evidence of a clear difference in standards of living ... and even then - best enlist a clairvoyant as her guess may be as good as that of the best lawyer as to the court's treatment of the undue hardship claim.

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