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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 02-14-2006, 07:25 PM
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Default The Concept: Standard of living

Hi all,

I've been all over the web trying to figure out how the concept of standard of living works. More specifically, how it relates to my case.

As some of you know, I took a job 8 months after I seperated from my wife and this job pays very well. However, my entire marriage (17 years) I made about one third of this amount and my stbx refused to work the entire time thus causing us considerable financial strain and leaving us in debt 70 grand.

Now the stbx is asking for amounts which, when coupled with my child support of $808/month, would leave her with almost equal to what I net each month. I also have a cost of living which is at least 3 times higher than hers. I simply don't understand why her lawyer wanted my last 3 years of income tax assessment. The last 3 years clearly show that I made about 30 grand/yr . How is it that she can benefit from my NEW salary. She would actually be better off now ( if she wins her case) than she was when we were together! Does this mean that if I won the lottery of, lets say two million dollars, that she would get to live like a millionaire even though I won the money AFTER we separated?

Anyone? Can't seem to find out anything about this!
Thanks
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Old 02-14-2006, 08:26 PM
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Default Undue Hardship

Gooddadgoingmad,

I dont know much about spousal support and the standard of living test. I did find this. Maybe you could make a claim for Undue Hardship:

Undue hardship: The court may deviate from the table amount of support if it finds there is undue hardship because of four defined circumstances: (1) one spouse has assumed a proportionally high amount of debt from the marriage; (2) access expenses are unusually high; (3) one spouse must support another person under a court order or separation agreement; and (4) one spouse has a legal duty to support another child (a second marriage situation).

In determining the new amount of support, the court must ensure that the household standard of living of the spouse pleading undue hardship is not greater than the household of the other spouse. There is a prescribed test in the guidelines to decide the standards of living. A court must give recorded reasons if it deviates from the table because of undue hardship.

Where's LV when you need him .
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Old 02-15-2006, 12:31 AM
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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.
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Old 02-15-2006, 01:13 AM
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Default

This is all interesting for sure. My lawyer, if I am remembering correctly, has informed me that undue hardship doesn't actually exist is NFLD when relatiing to spousal support. It is only in relation to child support. She said that spousal is determined on a case by case basis. I have looked through the web and cannot find anything to support or dispute this, so I'll assume she knows what she's talking about! HA! Lord knows I pay her enough to know what she's talking about.

It's funny because I cannot seem to find anywhere, where there are exceptions for cases where the payor has an extremely high cost of living. I see lots of tests that compare household incomes and such, but the fact still remains that it will cost me at least 3 times as much money to support myself then my stbx will require. I would imagine that the judge will accept this informatioon from my lawyer.

I still don't understand standard of living. How my ex could benefit from my large salary which I received AFTER we separated...when while we were together we liviing on 3 times less than I make now. Why even ask me for my last three years of income tax assessments?
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Old 02-15-2006, 11:08 PM
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gooddadgoingmad,

Is your ex bringing the claim for spousal support under the divorce act or relevant provincial statute.

Have you searched at canlaw for jurisprudence case law in NFLD that may apply to your situation.

The link to can law can be found here

http://www.canlii.org/index_en.html

NFLD specific case law can be found here


http://www.canlii.org/nl/index_en.html

Divorce Act Canada -

http://laws.justice.gc.ca/en/D-3.4/index.html

Spousal Support Orders

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

1997, c. 1, s. 2.

Priority

Priority to child support

15.3 (1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.

Reasons

(2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

Consequences of reduction or termination of child support order

(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.
1997, c. 1, s. 2.

There is no undue hardship mentioned in the Divorce Act Canada for spousal support.

I would look at the federal spousal support advisory guidelines. These are not law, However more and more courts are using these guidelines when determining quantum of spousal support. It appears to me that spousal support is no-fault.

The advisory spousal support guidelines can be found here.

http://www.justice.gc.ca/en/dept/pub...ect/index.html



LV
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Old 02-20-2006, 04:44 PM
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Default Income Sharing

This is great information and I thank you so much for providing me with the links.

The guidelines are a scary prospect for me. I can see why ex's lawyer would want to use them as the guidelines seem to put her in a much better position. I notice the term "income sharing" and it's maddening!!! I still don't know how to incorporate the fact that I am living in a place with such a high cost of living. The fact that I could be left here, in a community where I have no family and no support, without enough money to live on or even to leave if I have to, is terrifying. I am also worried because I travel a lot with my job and I am expected to pay for my costs up front and apply for reimbursment AFTER the duty travel. Due to the bankruptcy I have no credit cards and if I am left with only half my salary due to spousal support and child support payments, I won't even be able to afford to take trips required by my job. Just the other day I was stuck in a major arctic blizzard in a community of 300 ppl on a stop-over via plane, and was expected to pay for my hotel until the blizzard let up. I had to call my boss and was mortified when he said, "just put it on your credit card." I had to tell him that I had no credit card, or enough money in my account to pay for the hotel. I was absolutley mortified! I've never felt so low before in my life. I ended up stuck for 3 days in this isolated community waiting out the blizzard andhad to call my father in newfoundland to put the hotel room on his visa. I'm 45 years old and I felt like a scared teenager.....

The stress is taking it's toll on me. I am seeing a mental health nurse on thursday. I am hoping it will help to talk to someone but there's a part of me that feels that without money, I am nothing and am doomed. On the other hand I also know that any money I have, the ex will take.

I'm going to do some more research on income sharing. I need to figure out a way to show the judge that I cannot survive on the amount that I would be left with if my ex gets her spousal support judgement.
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Old 02-20-2006, 07:49 PM
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gooddadgoingmad,

One thing to remember is that periodic spousal support is tax deductible and lump sum is not. The court order or separation agreement would have to be filled with Revenue Canada and they would review the deduction and perhaps cross reference your ex's income tax return to verify she is claiming the received spousal support amount as an income.

Remember to ask for shared access costs in the form of an order in regards to the children access travel. Access is the child's right and upon saying that both parents are responsible for the cost of the child's access travel.

There really isn't any specific law that deals with access costs. As a rule of thumb, old school jurisprudence; the courts made the non-custodial parent to born the costs of all access travel. However, We are in a new age and more and more courts are ordering that the children's access costs be shared between the parents which is rightly so in my eyes as access is indeed the child's right.

LV
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Old 02-20-2006, 10:59 PM
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Thank you so much for the advice! These are all good things to know, for sure.

I am wondering, though. There is no way my ex could afford to "share" in the cost of my accessing my child. Wouldn't this just make her expenses greater and thus make me responsible for paying her more? I do believe my lawyer is using the same criteria of undue hardship with the spousal support instead of the child support...even though this is not formally recognized by the court. I am currently paying full child support as per the Child SUpport Guidelines and my lawyer did not think we'd win the undue hardship claim because my income is significantly higher than the ex's. However I think my lawyer is goiing to try to show that there would be undue hardship with: the large child support payment; the high cost of living in Nunavut; the high cost of flights home to see my child. I have agreed to pay ALL of my sons medical expenses and agreed to my ex keeping the car worth about $4500...all of the household items that are not encumbered by bankruptcy which equates about $2500; and the pensioin which is only worth about $1000.

As you know, I declared bankruptcy after we spearated but my ex still hasn't for some reason that I can't figure out. Thus, I've recently signed over to her my interest in the matrimonial home which has NO equity and is falling apart and probably would never sell ( we never had the money to fix it up) and of course the ex is left with ALL the credit card debt ( which was incurred because she wouldn't work and we had to put food on the table).

Basically, I left with barely even the clothes on my back and she kept EVERYTHING including a computer she always refused to learn how to use.

In any event, I have been left with nothing but the good fortune to finally find a good paying job. Now I am faced with having to give her half of that too....and with the possiblility of NOT affording to see my son or even meet my basic needs.

Here I go again....off on a tangent! Forgive me for doing this every time. I just have so many questions and I suppose being so isolated here in the North I find myself with no one to talk to.

Thanks for listening!!
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