Ana Kraljevic Law Firm


The High Bar of Proving Undue Hardship in Ontario

In Ontario, there is a presumption that a child support payor will pay the Table amount of child support in accordance with s. 3(1) of the Federal Child Support Guidelines, SOR/97-175. The Table amount of child support is determined by two factors – the payor’s income and the number of children. Schedule 1 of the Ontario Child Support Guidelines, which mirror the Federal Child Support Guidelines, SOR/97-175, include tables which set out the exact amount of child support payable. This reduces litigation by eliminating the guesswork with respect to the amount a parent or spouse is required to pay. It also achieves the policy goal of making child support payments in Ontario certain, fair, and predictable.

While there is a presumption that the basic Table amount as prescribed by s. 3(1) of the Federal Child Support Guidelines will apply, it is a rebuttable presumption. This means that if an individual against whom an order is sought wants the court to make an order for a different amount, the burden is on them to prove that paying the Table amount would result in undue hardship. While it is possible, proving undue hardship in a family court case is no small feat. S. 10 of the Guidelines sets out a two-part test that the court must apply when a parent or spouse makes a claim of undue hardship.


Undue hardship

10 (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 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 undue hardship

(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:

  • (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
      • (i) under the age of majority, or
      • (ii) the age of majority or over but 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.
  • Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), 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 determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

  • Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

  • Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

  • Reasons

(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.

There are three parts to the test for undue hardship

1. The person making this claim must show that there are circumstances that could create undue hardship;

2. If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party’s; and,

3. If the first two parts of the test are established, the court still has discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties.

Step One:

The first step to prove undue hardship is to demonstrate that one of the circumstances set out in s.10(2) applies. These include the following:

  • unusually high levels of debt incurred to support the child/children before the separation
  • high transportation expenses incurred to exercise parenting time (i.e., if a child lives out of province or internationally and a parent has to fly to see them)
  • the payor has an obligation to support another person pursuant to a judgment, order or separation agreement
  • the payor has to support children from another relationship
  • the payor has an obligation to support a person who is a dependent as a result of disability or illness

It is important to note that the foregoing list is non-exhaustive. There may be other reasons other than the circumstances listed in s. 10(2) as to why a spouse or parent may struggle to pay Table support and a reduction may be warranted. For example, the parent or spouse may suffer from a medical condition which impairs his or her ability to earn an income.

As noted, it is very difficult to establish a successful claim for undue hardship under section 10 of the Guidelines. In family law, undue hardship has been found to be the exception and not the norm.

There are two key tips that are critical if you want to be successful in proving undue hardship

1) Show that the hardship is exceptional, excessive, or disproportionate

While it may be tempting for a payor to argue that their individual circumstances meet the test for undue hardship it is only in rarest of circumstances that a payor will be deemed to have actually met the criteria. The case law is clear that the hardship must be exceptional, excessive, or disproportionate, not merely awkward or inconvenient (See Hanmore v. Hanmore  2000 ABCA 57 (CanLII).   

2) Lead Cogent Evidence

To be successful, a payor must provide evidence to the court that he or she is actually suffering undue hardship. The undue hardship cannot be theoretical or presumed because the claimant meets one of the criteria in s. 10(2). For example, a payor cannot assert that he or she does not have to pay the basic Table amount due because of a legal obligation to support children from a second relationship but then provide no evidence to the court that they are actually pay said child support.

The courts have found that second families are not uncommon and the fact that a payor’s household standard of living is lower than that of the other parent because of a legal duty to support another child does not automatically create circumstances of undue hardship within the meaning of the Child Support Guidelines.

Step Two:

Once you have satisfied the court that one of the circumstances applies, you proceed to step two of the test. Step two of the test requires the court to determine whether the spouse making the claim for undue hardship would have a higher standard of living than the other spouse. It is at this stage where the financial means of the other spouse becomes a relevant consideration.

Schedule II of the Federal Child Support Guidelines sets out a Comparison of Household Standards of Living Test. You can find the link to the test here.

It is only when the court is satisfied that the child support payor would suffer a lower standard of living that the court may order a different amount of child support other than the Table amount.

Step Three:

However, even if an applicant proves that he or she has a lower standard of living under s. 10(3), there is still residuary discretion for the claim to be denied by the court pursuant to s. 10(1).

Cases worthy of mention

Atkinson v. Johnson, [2021] O.J. No. 118

The father had 11 children with four mothers. The subject of the application was the mother of his four oldest children. The father was living with the mother of his three youngest child who he had supported since birth. Although the father historically earned a significant income – his 5-year income averaged $98,191.40 – he was not supporting any of his four oldest children. The mother supported the four children throughout their entire lives, sometimes supplementing her income with social assistance.

The court was very critical of the father’s conduct, finding that he failed to make full and frank disclosure, he delayed making disclosure and he was not forthright and honest about the sources of his income. The court also found that the father acted unreasonably in quitting his high-income job in January 2020 to become self-employed and that he was under-reporting his income through self-employment. He did not produce requested disclosure regarding his business income such as corporate bank accounts, credit cards, and line of credit statements to allow the court to determine his income for child support purposes. There were several red flags which indicated that the father was in fact earning more than what he reported. For example, the father could not explain the discrepancies between the income he earned in 2018 and 2019 and his bank deposits. The father had received significant deposits to his bank account which he claimed were gifts from his father and loans from friends. The father also failed to disclose that he was the sole shareholder of a company that he purported to work for as an employee. Not surprisingly, the court was critical of the father’s conduct finding that he had acted in a profoundly unreasonable manner:

“It is hard to understand the decisions that the father has made to have eleven children. No explanation was offered. He is 40 years old. He does not appear to believe that it is his obligation to support his children. He could not answer when asked who he thought would support all his children.”

Curtis J. imputed grossed-up income to the father based on the total deposits in his bank account for the years 2018 and 2019. 2020 income was imputed to him based on his line 150 on his 2019 Income Tax Return.

With respect to the father’s claim for undue hardship, Curtis J. had a long list of reasons as to why the father could not meet the first part of the test. First and foremost, the father paid no support for the four children for many years until the court made an order, after which he only paid support for two months. At the expense of his four older children, he benefitted financially for many years by not paying them any support. He admitted to not paying child support in 2020 except for the three children he was living with. He quit his high paying job in January 2020 to become self-employed. In 2018 he deposited $109,969.54 into his bank account and in 2019 he deposited $101,946.99. He did not make full and frank disclosure about the source of the deposits and failed to disclose these significant amounts on his last three financial statements. He made mortgage applications, one of which was in September 2020. His expenses exceeded his income and yet the only debt he claimed was a $1,000.00 credit card debt.


Orders for undue hardship, although rarely granted, can succeed if the payor can provide credible and substantiated evidence that one of the criteria in section 10(2) are met and would suffer a lower standard of living if Table support was ordered.

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