Grace,
I agree with 100%. You hit it right on the mark.
First judicial consideration is given to the support of the children. Sometimes there isn't enough left over for spousal support.
An undue hardship test for Ontario can be found in the following act
http://www.e-laws.gov.on.ca/DBLaws/R...h/970391_e.htm
FAMILY LAW ACT - Ontario REGULATION 391/97
Amended to O. Reg. 446/01
CHILD SUPPORT GUIDELINES
Schedule II
COMPARISON OF HOUSEHOLD STANDARDS OF LIVING TEST (Subsection 10 (4))
Definitions
1. The definitions in this section apply in this Schedule.
“child” means,
(a) in cases where the Divorce Act (Canada) applies, a child of the marriage or a child who,
(i) is under the age of majority, or
(ii) is the age of majority or over but is unable, by reason of illness, disability or other cause to obtain the necessaries of life, or
(b) in cases where the Act applies, a child who is a dependant under the Act; (“enfant”)
“household” means a parent or spouse and any of the following persons residing with him or her,
(a) any person who has a legal duty to support the parent or spouse or whom the parent or spouse has a legal duty to support,
(b) any person who shares living expenses with the parent or spouse or from whom the parent or spouse otherwise receives an economic benefit as a result of living with that person, if the court considers it reasonable for that person to be considered part of the household, and
(c) any child whom the parent or spouse or the person described in clause (a) or (b) has a legal duty to support; (“ménage”)
“taxable income” means the annual taxable income determined using the calculations required to determine “Taxable Income” in the T1 General form issued by the Canada Customs and Revenue Agency. (“revenu imposable”)
Test
2. The comparison of household standards of living test is as follows:
STEP 1
Establish the annual income of each person in each household by applying the formula
A – B
where
A is the person’s income determined under sections 15 to 20 of these guidelines, and
B is the federal and provincial taxes payable on the person’s taxable income.
Where the information on which to base the income determination is not provided, the court may impute income in the amount it considers appropriate.
STEP 2
Adjust the annual income of each person in each household by
(a) deducting the following amounts, calculated on an annual basis:
(i) any amount relied on by the court as a factor that resulted in a determination of undue hardship, except any amount attributable to the support of a member of the household that is not incurred due to a disability or serious illness of that member,
(ii) the amount that would otherwise be payable by the person in respect of a child to whom the order relates, if the pleading of undue hardship was not made,
(A) under the applicable table, or
(B) as considered by the court to be appropriate, where the court considers the table amount to be inappropriate,
(iii) any amount of support that is paid by the person under a judgment, order or written separation agreement, except,
(A) an amount already deducted under subclause (i), and
(B) an amount paid by the person in respect of a child to whom the order referred to in subclause (ii) relates; and
(b) adding the following amounts, calculated on an annual basis:
(i) any amount that would otherwise be receivable by the person in respect of a child to whom the order relates, if the pleading of undue hardship was not made,
(A) under the applicable table, or
(B) as considered by the court to be appropriate, where the court considers the table amount to be inappropriate, and
(ii) any amount of child support that the person has received for any child under a judgment, order or written separation agreement.
STEP 3
Add the amounts of adjusted annual income for all the persons in each household to determine the total household income for each household.
STEP 4
Determine the applicable low-income measures amount for each household based on the following:
Low-income Measures
Household Size
Low-income Measures Amount
One person
1 adult
$10,382
Two persons
2 adults
$14,535
1 adult and 1 child
14,535
Three persons
3 adults
$18,688
2 adults and 1 child
17,649
1 adult and 2 children
17,649
Four persons
4 adults
$22,840
3 adults and 1 child
21,802
2 adults and 2 children
20,764
1 adult and 3 children
20,764
Five persons
5 adults
$26,993
4 adults and 1 child
25,955
3 adults and 2 children
24,917
2 adults and 3 children
23,879
1 adult and 4 children
23,879
Six persons
6 adults
$31,145
5 adults and 1 child
30,108
4 adults and 2 children
29,070
3 adults and 3 children
28,031
2 adults and 4 children
26,993
1 adult and 5 children
26,993
Seven persons
7 adults
$34,261
6 adults and 1 child
33,222
5 adults and 2 children
32,184
4 adults and 3 children
31,146
3 adults and 4 children
30,108
2 adults and 5 children
29,070
1 adult and 6 children
29,070
Eight persons
8 adults
$38,413
7 adults and 1 child
37,375
6 adults and 2 children
36,337
5 adults and 3 children
35,299
4 adults and 4 children
34,261
3 adults and 5 children
33,222
2 adults and 6 children
32,184
1 adult and 7 children
32,184
STEP 5
Divide the household income amount (Step 3) by the low-income measures amount (Step 4) to get a household income ratio for each household.
STEP 6
Compare the household income ratios. The household that has the higher ratio has the higher standard of living.
O. Reg. 391/97, Sched. II; O. Reg. 446/01, ss. 8, 9.
This undue hardship test applies for hardship claims brought forth under the Family Law Act of Ontario in regards to payable tabled child support.