Duhaime's Law Dictionary

Undue Hardship Definition:

Special or specified circumstances that partially or fully exempt a person from performance of a legal obligation so as to avoid an unreasonable or disproportionate burden or obstacle.

{• Editor's Note:   See, also, the article Undue Hardship - The Child Support Paradox.}

An obligation which is not in proportion to the reciprocal cost or benefit.

In human rights and employment law, an organization or employer can be said to have an obligation accommodate a disabled or ailing employee, or a feature of a particular culture, but not to the point of undue hardship.

In Council of Canadians with Disabilities v. VIA Rail Canada Inc., Canada’s Supreme Court wrote:: 

Undue hardship implies that there may necessarily be some hardship in accommodating someone’s disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate.... Concrete evidence is required to establish undue hardship.”

Similarly, while a transportation company might have an obligation to accommodate persons with disability, this does not extend to the point where such accommodation would cause the transportation company undue hardship.

Undue hardshipThe Canadian Human Rights Act refers, at §15(2) to:

“... it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.”

A term also used in Canadian family law referring to a child support discount a payor may receive where he or she has other specified costs which create a differential in the standard of living between the payor’s household and that of the payee.

The federal Child Support Guidelines is a complete code of the law in regards to undue hardship and child support, at §10, as follows:

"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 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; (or)
  • 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 under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after (otherwise) determining the amount of child support ..., have a higher standard of living than the household of the other spouse."

In the context of a child support matter, but in words that judicially characterize, generally, the concept of undue hardship, Justice Cook of the Newfoundland Unified Court wrote:

"Undue hardship is a tough threshold to meet. Synonyms for undue include: excessive, extreme, improper, unreasonable, unjustified. It is more than awkward or inconvenient."

Conversely, in a labour arbitration case, admittedly never a completely reliable source of legal wisdom, Dominion Colour Corp. v. Teamsters Chemical, Energy & Allied Workers, and in a matter of accommodation, and not child support, it was stated that:

"Taken at face value, the requirement to accommodate up to the point of "undue hardship" might be thought a ferocious obligation, indeed. ... '(H)ardship' means severe suffering or privation.... severe toil or suffering; extreme privation. It is clear, however, that the courts are giving the "hardship" word a much softer interpretation than that. "


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