In Ontario, you can challenge the standard Spousal Support Advisory Guidelines (SSAG) amount if paying it causes “undue financial hardship.” To succeed in Family Court, you must prove exceptionally high pre-existing debts or a legal duty to support other dependents, and your overall household standard of living will be evaluated by the court.
When couples separate in Ontario, the Spousal Support Advisory Guidelines (SSAG) serve as the standard formula for determining who pays whom, and how much. For most families in cities like Toronto, Brampton, or London, the SSAG ranges provide a fair framework. However, mathematical formulas are not perfect. Sometimes, strictly applying the standard support amount would leave the paying spouse entirely unable to survive or fulfill their other binding legal obligations. When this occurs, family law provides an exception known as “undue hardship.” ⚠
Claiming undue hardship is not simply telling the judge that you are broke or that living in Ontario is expensive. The threshold for the hardship test under the Family Law Act and the federal Divorce Act is incredibly high. The court will heavily scrutinize your entire financial reality. You cannot rely on massive credit card debt you recently accumulated buying luxury items. Generally, most applicants who successfully lower their spousal support payments based on hardship work closely with an experienced family lawyer to build a robust, evidence-backed case. 📝
Step-by-Step Process in Ontario
Arguing undue hardship requires a meticulous presentation of your financial life. You are essentially asking a judge at the Superior Court of Justice to deviate from normal provincial standards. Here is the standard legal process for bringing a hardship claim.
Step 1: Calculate the Standard SSAG Baseline
Before you can argue that the amount is too high, you must determine what the standard amount is supposed to be. Your lawyer will run the SSAG calculations based on current CRA Notices of Assessment and T4s. This establishes the legal baseline. You must prove that paying the lowest end of this suggested range still causes devastating financial ruin. 💸
Step 2: Identify an Eligible Circumstance of Hardship
The law explicitly outlines what counts as an exceptional circumstance. Acceptable reasons include carrying an unusually high level of family debt incurred prior to separation, facing immense, unavoidable medical expenses, or having a legal obligation to support another dependent (such as a disabled child or a child from a previous relationship). Voluntarily taking on new personal debt after separation does not qualify. 👨
Step 3: Assess Overall Financial Capability
Unlike child support, which requires a mandatory, formulaic “comparison of household standards of living test” (the Schedule II test), spousal support hardship exceptions do not involve a strict mathematical standard-of-living comparison under the SSAG. While the court does not run a mandatory household ratio test, a judge will still look at your overall financial reality. The income of a new partner may be reviewed to assess how your individual living expenses are reduced, but a higher household standard of living does not trigger an automatic statutory bar like it does in child support cases. 🏠
Step 4: Gather Extensive Financial Evidence
You cannot simply swear an affidavit saying you are struggling; you must prove it. Your lawyer will help you compile months of bank statements, line of credit histories, utility bills, rent receipts, and medical invoices. Full and frank financial disclosure is absolutely critical to succeeding in a hardship application. 📒
Step 5: File a Motion to Change
If a support order is already in place, your lawyer must file a formal “Motion to Change” at the local Family Court. The motion outlines the severe financial changes and requests a downward variation of the support amount based on the undue hardship provisions.
How Much Does it Cost in Ontario?
Pursuing an undue hardship claim is complex litigation. Because you are fighting against the standard guidelines, the other spouse will fiercely defend their right to the money, leading to expensive legal battles.
- Court Filing Fees: Under Ontario regulations, filing a Motion to Change (Form 15) in the Superior Court of Justice (which handles divorced couples under the federal Divorce Act) costs $224 CAD. However, it is free ($0 CAD) if filed in the Ontario Court of Justice (which handles unmarried or common-law couples under the Family Law Act) or if you obtain a fee waiver.
- Financial Auditing: If you need a forensic accountant to trace complex family debts to prove they predate the separation, expect to pay between $1,500 and $3,500 CAD.
- Family Lawyer Fees: Litigating an undue hardship claim requires drafting heavy affidavits and arguing in front of a judge. Legal fees for this specific type of motion typically range from $3,500 to $10,000+ CAD.
- Cost Awards: If you lose the hardship motion, the judge may order you to pay a portion of your ex-spouse’s legal fees, adding massive risk to the application.
| Cost Category | Description | Estimated Cost (CAD) |
|---|---|---|
| Court Filing Fee | Filing a Motion to Change (Superior Court of Justice is $224; Ontario Court of Justice is free) | $0 or $224 |
| Accountant Fees | Tracing and verifying pre-separation debts | $1,500 – $3,500 |
| Legal Representation | Lawyer fees to litigate the hardship claim | $3,500 – $10,000+ |
How Long Does the Process Take?
Changing a court order based on hardship is not a fast process, and you must continue paying your current support amounts until a judge officially signs a new order.
Gathering the extensive financial evidence and having your lawyer draft the Motion to Change takes about 3 to 6 weeks. Once filed, the opposing spouse has 30 days to respond. Because Ontario Family Courts are heavily backlogged, securing a motion date in front of a judge can take anywhere from 4 to 8 months. During this waiting period, parties often attend a Mandatory Information Program (MIP) or a case conference to see if they can settle the issue outside of court. ⏳
Frequently Asked Questions (FAQ)
Can I claim hardship because my new mortgage is too high?
Generally, no. Courts view purchasing a new, expensive home after separation as a voluntary choice. Hardship must stem from unavoidable expenses or debts incurred during the marriage, not new lifestyle upgrades.
Does my new partner’s income affect my hardship claim?
It can, but not through an automatic math test. For child support, a new partner’s income can trigger an automatic failure under the strict Schedule II comparison test. For spousal support hardship under the SSAG, there is no such mandatory standard-of-living test. However, the court can still look at a new partner’s income to determine if they are contributing to your rent, mortgage, or utilities, which indirectly reduces your personal living costs and increases your ability to pay support.
What if I owe massive amounts to the CRA?
Significant tax arrears can sometimes be factored into a hardship claim, especially if the tax debt was generated during the marriage. However, if the tax debt is due to your own recent negligence or failure to file, a judge is unlikely to lower your spousal support to fix your tax mistakes.
Can the hardship test be applied to child support instead?
Yes. The undue hardship test also exists under the Federal Child Support Guidelines. However, judges are even more reluctant to reduce child support than spousal support, as the financial well-being of the children is the absolute highest priority in Ontario family law.
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