Are child support payments causing undue hardship in Ontario? Federal legislation establishes child support guidelines. These tables are rigid and require child support to be paid based on the income of the parent paying support. Oftentimes, a parent will say that the child support amount is high and is causing undue hardship. Only a Court in Ontario can order a lower amount of child support. The Ontario Superior Court of Justice in Ottawa examined this issue in a written decision earlier this summer. Much of that written decision was focused on custody and access. This article is only considering the argument on undue hardship as it relates to child support.
Paying Child Support is Causing Undue Hardship in Ontario
The mother and father in this case never married. Their relationship was short and their one child was born in 2017. The father is a police officer in the Pembroke area in Eastern Ontario. His most recent annual income was $105,785 per year. The mother is a nurse in Ottawa and her income was $66,000 per year.
Based on an income of $105,000 per year, child support for one child in Ontario is $925 per month. The father argued that paying $925 per month would cause undue hardship. His argument was based on:
- $37,000 owed to his parents which was used to fund a criminal defence lawyer;
- Payment of $620 per month in child support to his ex-wife to support his two children from a previous marriage;
- Payment of significant expenses to support his two other children in their involvement in competitive hockey.
The father argued that the combination of these factors justified his request to have child support reduced. He also added to his position by arguing that the mother’s household had a higher standard of living than his.
The Law on Child Support and Undue Hardship in Ontario
The Judge reviewed the law on the facts to be considered in ruling on an application for undue hardship. In Ontario, the Child Support Guidelines are a regulation under the Family Law Act. Section 10 of that regulation provides a list of some of the factors in considering an undue hardship applications. A few of these factors are:
- Unusually high debt levels incurred by supporting the children and other parent;
- Unusually high expenses related to exercising access to the child;
- A legal duty under a judgment to support another person;
- A legal duty to support another child.
Further in that same section, there is consideration for the standard of living between the two households. This section includes a comprehensive test on comparing the standard of living.
Proving Undue Hardship in Ontario
In this case, the father’s application for undue hardship failed. While the Judge heard evidence of a $37,000 debt owing to the parent, the father failed to prove this debt. There was no contract, no promissory note nor any other documentation related to the debt nor the repayment schedule.
Next, the Judge looked at the $620 per month the father was paying in child support for his other two children. Again, there was no evidence that these payments were causing undue hardship. The father was paying a reduced amount of child support because the children were with him for a significant amount of time each month. While this may be considered a significant expense, the father still had an obligation to pay child support for the child that was the subject of this court case.
The Judge then considered the father’s income of $105,000 per year, as well as the income of his spouse of $38,000 per year. The father estimated his monthly household expenses were $2,000 per month. Given their respective income levels, his new spouse would also be expected to contribute to the household expenses.
Finally, the Judge reviewed the father’s proposed budget in detail. He noted claimed expenses of $600 per month in tobacco and alcohol, as well as $200 per month for meals outside the home. This combined for $800 per month and can’t be considered a justification for reducing child support.
In the end, the Judge found that the father failed to prove undue hardship. While earning over $100,000 and living in a rural community in Eastern Ontario, there was no evidence to prove undue hardship.
Comparing the Standard of Living Between Two Households
In this case, the father asserted that the standard of living in his house was less than that of the mother’s house. There was no evidence provided to prove this point. Legislation in Ontario provides a framework for how a standard of living is compared. This requires a detailed analysis of the budget for each household.
The formula examines all income and expenses for each house. The total amount is then divided by a “low-income measures amount” based on the number of adults and children in the house. This calculation results in a ratio, which is used to compare the two houses.
How to Prove Undue Hardship to Reduce Child Support in Ontario
In this case, the father did not prove undue hardship. If child support payments causing undue hardship in Ontario, or if your ex-spouse is attempting to increase child support, obtain some legal advice. Proving this can be difficult.
The most important aspect of this application is providing tangible evidence on your debts and expenses. Simply stating that you have a significant debt is not enough. You need to prove this debt, meaning proving where the money came from, what expense it went to pay for and how it is being repaid.
If you are arguing that your living expenses are causing undue hardship, then simple budget estimates are not sufficient. Using financial statements to prove your income and expenses will be useful in advancing your claim.
Contact Hearty Law today for a consultation on questions related to child support, spousal support, divorce, property division, hidden assets, concealed income and other family law financial need. All consultations are completed virtually, so you don’t need to leave the comfort of your own home. Send an email to email@example.com or firstname.lastname@example.org or complete the contact form here.
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