In Ontario there are two kinds of child support payable - the basic amount and the extraordinary amount. (For more information, see my December 4 blog “A Brief Note on Child Support and Extraordinary Expenses.”)

The basic amount (also called “table amount”) of child support payable is determined solely by the income level of the support payor under the Child Support Guidelines.* In other words, the income level of the recipient is irrelevant for the purpose of determining the basic amount payable.

Exceptions to the basic amount are few. The most commonly seen exception is for “undue hardship.”

For the purposes of this blog, we will limit the discussion to the federal Child Support Guidelines, enacted under the Divorce Act.+

There are several circumstances that may support the claim of undue hardship: an unusually high level of debts incurred to support the receiving spouse and children prior to the separation or to earn a living; unusually high expenses in relation to exercising access; and a legal duty to support another person.^

However, to claim undue hardship, the court must consider differences of living standards between the households. Under the law, the claim for must be denied if the court determines that the household of the spouse claiming undue hardship would have a higher standard of living than the household of the other spouse.

In comparing standards of living, the court would follow the schedule under the regulation, which provides an elaborate calculation formula. The formula provided is complicated, to say the very least, especially if you attempt to do the calculation with pen and paper. Therefore, most family law practitioners use a specialized computer program.

*Ont. Reg. 391/97 (provincial), Can. Reg. 97-175 (federal)

+R.S.C. 1985, c. 3 (2nd Supp.)

^Can. Reg. 97-175, s.10

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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