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-   -   Undue Hardship (http://www.ottawadivorce.com/forum/f5/undue-hardship-496/)

hubby 01-25-2006 03:46 PM

Undue Hardship
 
Undue Hardship defined as ...

"In reference to child support, a situation in which the paying of the amount of child support specified by the Child Support Guidelines would cause serious difficulty and gross unfairness for either the payor or the recipient; a greater degree of hardship than simple "hardship" is required, it must also be "undue" or manifestly unfair before the court will deviate from the Guidelines. See also "Child Support" and "Child Support Guidelines."

My question is this.

Would "serious difficulty and gross unfairness for either the payor or the recipient" be construed to mean the inability of one spouse after having paid out monies not having the ability to maintain an environment suitable for the children? IE - Not enough money to rent/purchase a home/ pay the bills/ groceries / buy furniture ...

What are the guidelines to be considered as being under 'Undue Hardship' ...

Hubby

sasha1 01-25-2006 04:24 PM

I don't have a great answer for you, but I certainly hope that's what it means... as a 'recipient', (since your definition says for EITHER the payor or the recipient), I can tell you that the amount specified for my ex to pay isn't enough for me to rent/purchase a home, and pay bills, and groceries, and sure as h*@$ isn't enough to buy furniture with!:rolleyes:

I do know that in cases where an amount is set and court-ordered, if the payor loses their source of income (through no fault of their own), and is unable to secure alternative employment (again, through no fault of their own), the court will consider lowering the amount... I believe for a specific period of time. The payor must show that they are actively trying to become employed, though. Hopefully someone else will be able to give you a more specific answer.

hubby 01-26-2006 11:31 AM

Hoping Jeff or Lindsay can answer this one ...

You know the law stipulates both spouses are entitled to their children, yet, they (the law) turn around, rob one spouse of their ability to provide and say, 'tough'! -- I'm speaking purely finanacially at this point.

Casue really, lets face it, ya gotta have money in this world to raise a family and live ...

If I'm blowing this way out of context, please people, correct me.

Which brings us back to 'undue hardship' ...

Hubby

logicalvelocity 01-26-2006 12:57 PM

Hubby,

I know where your coming from.

In the child support guidelines there is a undue hardship test at the end. Schedule II to compare standards of living from each household.

http://www.e-laws.gov.on.ca/DBLaws/R...h/970391_e.htm

What I find difficult and hard to swallow is that the cost of raising and providing for a child is similar. A pair of shoes costs relatively the same regardless if your parents make 30K a year or 100 K. But yet support tables factor this disparity in. Does this mean that married couples with intact relationships should be spending this amount on each of their children, if not would they be considered bad parents?

You are right if a significant portion of your income is allocated for support purposes, and very little is left to accommodate your child, it does make you wonder how you can have a decent relationship with your child/children.

The undue hardship test as listed in section II of the Ontario child support guidelines.

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

I believe they get the figures from stats can. The amounts are not realistic or geography based if you consider the cost of renting a small apartment in a major city such as Ottawa or Toronto.


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