Help with Understanding "Change in Standard of Living?"

[littleman]

I can tell you that 100% jennw undue hardship is almost unable to be proven and a judge honestly doesnt care......my ex tried to claim that and the judge looked at him and said you brought the child into the world and now it will cost you to help raise this child to adulthood.....unless you are living out of a cardboard box on the street then undue hardship is impossible to claim.....sorry........CS is based soley on income of the payor......nothing to do with recipient at all......

[DadofTwoGirls]

I just spoke to my lawyer yesterday regarding a situation like this. He just wrapped up a case where he represented the father who earned $5k/yr less than the mom. But, he was married to a woman who earned about the same as him - not sure the income levels.

In the end, without using "undue financial hardship", the judge has significant leeway in shared custody as per section 9 of the Federal Child Support Guidelines. Note 9.c. In this case, the father ended up being ordered to pay $160/mo to the mom based on the fact that his household earned double the income of the other.

Again, undue financial hardship was not discussed in this case.

Shared custody
9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[FL_Needs_To_Change]

My experience is that the courts will "look" at the total income and means of the paying parent, however when it comes to looking at the total income and means of the receiving parent it does not happen. A double standard for sure.

We won a case to temporarily reduce CS to zero based on an informal standard of living, where the mom had a substantial increase in "household" income due to (among other things) a recent marriage, and new job. Where as dad had limited income and a second family to support.

You can bet we were ordered to provide documentation on attempts to increase our household income to facilitate dad’s ability to return to table amounts of CS. Basically the judge we had told us I needed to find a better paying job so dad wouldn’t have to offer us so much support and shift the support to the ex. To date we together (both have what the average person would call very good positions), and we still earn less then half of what mom does, and I can bet dimes to dollars she doesn’t even notice the four figure amounts sent each month.

So it is hard to prove hardship, but it is not impossible, I guess it's the luck of the draw in which judge you happen to be in front of. If you're lucky you'll get one with a conscience and part of a heart. One that will see that mom is not in “need”, children are not wanting for anything and dad just needs a break even if temporary to gain his financial footing so that his time with the children is meaningful, not financially stressed.

[DadofTwoGirls]

Well said.

[jennw]

Thank you for all of the information!

Does anyone think that the fact that she is not 'contributing' financially to her child work for us? (she was on a mat leave from late 2006-late 2007 and then had another baby early 2008 so is still on a mat leave as her new child is only 2 months old).

Is she not responsible to pay for her 1st child to show 'equalization' of payments?

I know undue hardship is hard to show but c'mon, she's a stay-at-home-mom, just moved into a 1.6 million dollar home, has a nanny, has a maid, has a brand new vehicle to now accomodate 3 children (all paid for by her boyfriend/new kids daddy).

All the while my husband and I are working with daycare costs for our 2 year old, access costs to see his 1st child (she lives 125 km away), paying support and managing our household.

We want to have another child in our family...but I'm afraid we will go into financial ruin due to it especially when my income would be down to 60-70% on a mat leave.

Something would have to sway in our favour?

[FL_Needs_To_Change]

The last thing that you want to hear is that your family does not have the same level of importance as hers seems to have.

I would suspect that if there was an order or agreement in place where by she was financially responsible for one or more of the children which reduced dad’s proportionate share of CS, then that would not diminish, nor would it stop, unless she went back and asked for a change due to a material change. This type of shared financial responsibility I understand happens when both parents share equally in the physical care of the children, (minimum 40/60 split). If she is on Mat leave she is still financially responsible however her share may diminish and equally dads would increase.

IE if mom’s share (based on her income) was $250/month and Dads was $450, the net result would be dad paying $200. If her level of income had changed then her share would change accordingly. IE if her share changed to $125, and dad’s income remains unchanged, he would then be expected to pay $325.

A piece of a case, Justice M-E. Wright addressed the same debate in Orth v. Orth reflex, (1999), 176 Sask. R. 192 (Q.B.) and said at para. 42:

The factors to be considered by the Court and enumerated in s. 9 of the Guidelines recognize that there is an increased cost associated with shared custody as well as a joint obligation of the parents to contribute to that cost in accordance with their ability to do so. Maintaining two homes in which children will reside for approximately equal time results in many duplicated expenditures and by necessity, increases the overall cost of providing for the children. While reference must also be made to the amount otherwise payable by each spouse pursuant to the applicable table, a set-off of those amounts is not automatic as is the case in situations governed by s. 8 of the Guidelines. Furthermore, the mere existence of a shared custody arrangement does not necessarily lead to a reduction in the amount of support that one spouse would pay absent such an arrangement. There is a broad discretion in the Court to consider the means, needs and circumstances of the children and of the spouses.

Contino v. Leonelli-Contino, 2005 SCC 63 (CanLII) is a commonly sited case, where in it states,

Crossing the 40% threshold does not bring with it an automatic reduction to the support obligation. All it does is bring an automatic entitlement to have the issue of “appropriate” support considered (Contino, para. 30). Each party carries an onus to show the overall fitness of the award.

[FL_Needs_To_Change]

http://www.canlii.org/en/bc/bcsc/doc...1bcsc1163.html

In this case both parties remarried.
Dad's income with second family was about $45,000, and mom's went up to $86,000. They initially agreed they had split custody, but judge disallowed some of the days when he went back to make the 40/60 calculation himself. Bottom line, dad sought to reduce support due to mom's increase in standard of living and his reduced standard of living since they shared custody. The ultimate result was that dad's support went from $359 to $381. It's worth a read for you to understand how one case, where only the perspective changes, changes the bottom line result. I think this case could have easily had a completely different outcome with a different judge.