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“Undue hardship is a tough threshold to meet.”
Justice Cheryl Robertson, Ontario General Division,
in Swift v. Swift, February 5, 1998
In a previous article I discussed the methodology to be applied when attacking a
Guidelines case. Under s. 10 of the Federal Child Support Guidelines, one may
consider the presence of any factors that might support a reduction in the base amount
of child support due to “undue hardship” to be suffered by a spouse or by a child.
The non exhaustive list includes the following, in brief:
- Pre separation assumption of unusually high level of debts to
support the other family members or to earn a living;
- Unusually high expenses to exercise access to a child;
- Legal duty under a court order or separation agreement to support
any person;
- Legal duty to support another child who is under the age of majority
or is over that age but unable, by reason of illness, disability or
other cause to obtain the necessaries of life;
- Legal duty to support any person who is unable to obtain the
necessaries of life due to an illness or disability.
Secondly, in order to qualify, the spouse claiming “undue hardship” must pass the
Household Standards of Living Test, described in a Schedule, or some other
unspecified test.
We are not surprised that the cases to date have generated some level of
inconsistency. The recent Ontario Court of Appeal decision in Francis v. Baker,
March 10, 1998, [1998] O.J. No. 924, (Ont. C.A.) Abella, Austin, Charron, JJ.A.,
may influence greater uniformity of interpretation, at least in Ontario.
Types of Factors to support the undue hardship claim:
The enumerated list is not exhaustive. Do other factors have to bear some relation to
the types of factors actually enumerated? Scharf v. Scharf, January 16, 1998, [1998] O.J. No. 199, (Ont. Gen. Div.) was a split custody situation. The father argued
against the mother’s undue hardship claim, maintaining that the factors that the mother
wished to rely upon should have been of the same flavour as the enumerated ones in
section 10. Metivier, J. said “no”: “While certainty was sought by the Guidelines,
they were not drafted so as to provide certainty in a straight-jacket.” Likewise in
Petrocco v. Von Michalofski, January 16, 1998, [1997] O.J. No. 200. (Ont. Gen.
Div.) the same judge stated: “While there are some circumstances of "hardship"
which are statutorily defined in subsection 10(2) above, these are not exclusionary
nor all-inclusive. The language is permissive and therefore all other relevant
circumstances must be considered.”
Vertes, J. of the N.W.T.S.C. takes a different view in Hoover v. Hoover, July 21,
1997:
“The circumstances listed in subsection (2), while not an exhaustive list
of what could constitute undue hardship, are indicative of the type of
circumstances that are contemplated. The discretion to invoke this
ground is therefore somewhat circumscribed. The circumstances, which
can be relied on by either the payor or the payee, relate primarily to
expenses incurred outside of the parent-child relationship that is the
focus of the support order: debts incurred prior to the separation and
obligations to support other persons or other children. The undue
hardship is not one related to circumstances caused by the amount per se
of the support order.”
The view of Justice Vertes does not appear to find too much support elsewhere. All
other cases reviewed by this writer appeared to assume that other factors of any kind
could be advanced.
The Onus:
It is an uphill battle to successfully establish an undue hardship claim. Justice Abella
writes for a unanimous court in Francis v. Baker, March 10, 1998, [1998] O.J. No.
924, (Ont. C.A.) Abella, Austin, Charron, JJ.A.:
“[para41] It seems to me that s. 10 is the primary section offering relief
from the Table amount, but it is only available where severe financial
consequences flow from the application of a facially neutral Table
amount. If debts, other legal support obligations, or the expenses of
exercising access, create an undue burden on the paying spouse, there is
a discretion to reduce the amount of child support payable.
[para42] It is worth noting, however, that under s. 10(3), no reduction
will be ordered where it creates a higher standard of living in the
payor's household than in the recipient's. From this, one can logically
infer that the intention of the Guidelines is to give primacy to the
financial needs of the child's household, not the payor's. ... Even in
the face of other legal obligations, the payor is not permitted to
reduce the Table amount to an extent that it gives his own household
a financial advantage over that of the children.
[para43] This section reflects two economic aspirations of the
Guidelines, neither of which enjoyed universal application before the
introduction of this new statutory support scheme. The first is that the
needs being addressed are those of the child's household, not only the
economies of an individual child. This is a significant and, in my view,
long overdue reform.”
Other cases agree that the onus is on the party asserting the claim and that the onus is
indeed a very heavy one:
- Smith v. Stebbings, July 22, 1997, [1997] O.J. No. 4605. (Ont.
Gen. Div.), Aitken, J.
- Swift v. Swift, February 5, 1998, [1998] O.J. No. 501, (Ont. Gen.
Div.), Robertson, J.
- Williams v. Williams (1997), 34 R.F.L. (4th) 23 (N.W.T.S.C.)
- Nagy v. Tittemore, December 30, 1997, [1997] S.J. No. 810 (Sask.
Q.B.)
- Lovell v. Nolan, April 7, 1998, [1998] N.S.J. No. 149
In Swift v. Swift, Justice Robertson all but closes the door on ever being able to
establish an “undue hardship” case. It is a “tough threshold”, she states and
continues: “The payment of the guideline amount will rarely be a hardship that is
undue in the legal sense.” She examines the use of the word, “undue” and states at
paragraph 6:
“Synonyms for undue include: excessive, extreme, improper,
unreasonable, unjustified. It is more than awkward or inconvenient.”
According to this judge, second families would have a very difficult, if not
impossible time in her court ever meeting the test. She states:
“The application of the guidelines may result in interference with
existing financial planning strategy in many payor families.”
Other Children Yes:
Some cases allow an undue hardship claim on account of children from previous
relationships where support is being paid out or one supports children within a new
relationship:
- Hughes v. Bourdon, August 5, 1997, [1997] O.J. No. 4263. (Ont.
Gen. Div.), Aitken, J. At paragraph 17 the judge sensibly notes that
his order will affect two other children and therefore, “I have to
take into account the best interests of all children involved.”
- Baryani v. Longe, February 10, 1998, [1998] O.J. No. 606, (Ont.
Gen. Div.), J. Wright, J. (However, the real reason here appeared
to be the payor’s high accommodation costs relative to his meagre
income.)
- Jacques v. Jacques, May 12, 1997, Sask. Q.B.
- Hedderson v. Kearsey, February 24, 1998, [1998] N.J. No. 62
(Nfld S.C. - U.F.C.), L.D. Barry J.
- Butler v. Ryan, March 5, 1998, [1998] N.J. No. 63 (Nfld S.C. -
U.F.C.), L.D. Barry J.
- Thompson v. Thompson, April 16, 1998, [1998] B.C.J. No. 963
(B.C.S.C.), Cowan, J.
Other Children No:
Most of the cases will not permit a payor to rely on other children as a ground to
reduce his support:
- Claridge-Skof v. Skof, July 11, 1997, [1997] O.J. No. 3112, (Ont.
Gen. Div.), MacDougall, J.
- Smith v. Stebbings, July 22, 1997, [1997] O.J. No. 4605. (Ont.
Gen. Div.), Aitken, J.
- Swift v. Swift, February 5, 1998, [1998] O.J. No. 501, (Ont. Gen.
Div.) Robertson, J.
- Middleton v. MacPherson, June 12, 1997, Alta Q.B., Moreau, J.
- Tallman v. Tomke, June 27, 1997, Alta Q.B., Wilson, J.
- Nagy v. Tittemore, December 30, 1997, [1997] S.J. No. 810 (Sask.
- Lovell v. Nolan, April 7, 1998, [1998] N.S.J. No. 149, Legere,
Fam. Ct. J.
- Paul v. Pisio, April 17, 1998, [1988] S.J. No. 243 (Sask. Q.B.,
Fam. Law Div.), Dovell, J.
Debt Load:
A number of payors have tried to rely on large debt loads that are not always pre
separation related. These arguments have not succeeded:
- Claridge-Skof v. Skof, July 11, 1997, [1997] O.J. No. 3112, (Ont.
Gen. Div.), MacDougall, J.
- Pilotte v. Pilotte, February 5, 1998, [1998] O.J. No. 865, (Ont.
Prov. Div.), Little Prov. J.
- Tallman v. Tomke, June 27, 1997, Alta Q.B., Wilson, J.
- Hedderson v. Kearsey, February 24, 1998, [1998] N.J. No. 62
(Nfld S.C. - U.F.C.), L.D. Barry J.
- Pottruff v. Potruff, April 7, 1998, [1998] B.C.J. No. 923
(B.C.S.C.), Master Horn
- Cadeau v. Martell, April 28, 1998, [1998] N.S.J. No. 159 (N.S.
Fam. Ct), Legere, Fam. Ct. J.
Access Costs:
There are two cases the writer has examined that consider high access costs as
justifying at least in part the undue hardship claim. Likewise, two cases do not
accept the argument. “Yes” cases are: Petrocco v. Von Michalofski, January 16,
1998, [1997] O.J. No. 200. (Ont. Gen. Div.), Metivier, J. ; Baryani v. Longe,
February 10, 1998, [1998] O.J. No. 606, (Ont. Gen. Div.), J. Wright, J. “No” cases
are: Williams v. Williams, (1997) 34 R.F.L. (4th) 23 (N.W.T.S.C.); Paul v. Pisio,
April 17, 1998, [1988] S.J. No. 243 (Sask. Q.B., Fam. Law Div.), Dovell, J.
Amount of order itself:
One would have thought that the amount of the order would, simply from a common
sense point of view, have to be an element of the undue hardship analysis. ‘Not so’,
says Justice Vertes in Hoover v. Hoover, July 21, 1997 (N.W.T.S.C.) at paragraph
15:
“The undue hardship is not one related to circumstances caused by
the amount per se of the support order. In other words, the fact that
the stipulated amount of support, as determined by the Guidelines, may
be low and may result in hardship to the custodial parent, that in and of
itself does not appear to be the type of circumstance contemplated in
subsection (2).”
Likewise, the requirement to contribute to special section 7 expenses cannot,
according to at least one jurist, found an undue hardship claim. Justice Rothery of the
Sask. Q.B. states in Nishnik v. Smith, December 16, 1997, [1997] S.J. No. 812:
“[para6] It is also clear from the wording of s. 10(3) that an application
for undue hardship cannot be made on the basis of a payor being
required to pay for special expenses outlined in s. 7 of the Guidelines.
Section 10(3) specifically exempts undue hardship applications on the
basis of a support order made under s. 7.”
Genderist approach?
Non custodial mothers (and split custody moms) appear to be doing better than non
custodial fathers. In Martin v. Gerard, June 16, 1997, [1997] O.J. No. 2517, (Ont.
Gen. Div.), Kozak, J. allowed a mother (payor) with less than ½ of the income of the
father (recipient) to pay no child support instead of the guideline table amount of
$379.00 per month. In the split custody case of Scharf v. Scharf, January 16, 1998,
[1998] O.J. No. 199, (Ont. Gen. Div.), mom improved her position to the detriment
of dad, dad having only marginally more income than mom. In MacLeod v. Druhan
(1997), 34 R.F.L. (4th) 206 (N.S. Fam. Ct), Gass, J.F.C. similarly demonstrated
compassion for a split custody mom who on an application of the table amounts
would have received from dad $146.00 monthly. Instead, the judge ordered dad to
pay $236.00 monthly. The basis for this decision effectively lowering mom’s
monthly payment to dad by $90.00 was that “the amounts in the table do constitute
undue hardship for the mother and daughter in her care.”
Petrocco v. Von Michalofski, January 16, 1998, [1997] O.J. No. 200. (Ont. Gen.
Div.), a decision of Metivier, J., saw three children in the wealthy husband’s
custody. The wife earned only $27,650.00 per year. The table amount would have
been $516 per month. In comments that could be applied to non custodial fathers who
face the ravages of divorce, the judge takes a compassionate approach to the non
custodial mother who suffered because of the divorce and because of her health and
ordered her to pay only $150.00 monthly. If this same approach were applied to men,
many would not be required to pay the full table amount. Contrast Petrocco with
Pilotte v. Pilotte, February 5, 1998, [1998] O.J. No. 865, (Ont. Prov. Div.), where
Little Prov. J. considers a case of joint custody with each parent retaining primary
residence for one child. Father, whose income was $72,000.00 was paying spousal
support of $8,769 to mother who had an income of $37,508.00 plus the spousal
support. Father argued there that requiring him to pay child support to mom would
work an undue hardship upon both him and upon the daughter who primarily resided
with him. Judge Little finds such arguments to be without merit. These are the same
sort of arguments that the non custodial mother successfully used in Petrocco. On the
other hand, in Williams v. Williams (1997), 34 R.F.L. (4th) 23 (N.W.T.S.C.), the non
custodial mother was treated no differently than a man would have been.
Conclusions:
If a tentative conclusion can be drawn from the cases thus far with respect to the
conditions under which the “undue hardship” test prevails, it must be stated that
mothers succeed before the courts where under similar circumstances, fathers do not.
The acid test as to whether the new law will be interpreted in a manner that treats
both genders neutrally and impartially will be borne out in cases decided during the
latter part of 1998 and beyond. We now have Justice Abella’s dicta in Francis v.
Baker. Will the Ontario Court of Appeal’s admonitions be applied equally to non
custodial parents, no matter what their gender?
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