“Undue Hardship” Produces Conflicting Decisions

Guidelines’ undue hardship produces conflicting decisions

June 1, 1998, by Gene C. Colman
This article was published in Money & Family Law, July 1998 edition

NOTE TO READER: This article assumes that the reader already has a working knowledge of the Federal Child Support Guidelines. If you are in that category, read on. If not, go to my previous article on this subject first.

“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, 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, 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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