Not sure where to go from here

[Brandyb]

So here is the scoop... My husband has two children with his previous common law partner. When they split up he took the majority of the debt and less than $1000 of the assets. She got everything. There was no house or property involved. She was on social assistance and got a court order for child support based on the income my husband would have once he moved to Alberta to go into the oilfield. (sorry everyone I am from BC but could find a forum this awesome anywhere else so that was all well and good. Then we made the decision to move back to BC to be closer to the children from his previous relation ship. We got married and had two children while living in Alberta. Taking into careful consideration the choice made to have more kids. Not a big deal. My husband made great money in Alberta and paying support was painless while supporting his youngest children. However since we have moved back my husband makes a HUGE amount less per year than before. He is also suffering from mental health issues that landed him in the hospital a couple of times. Thus cutting is income even more. I currently stay home with our two kids as I could not earn enough to cover day care costs for them. we are going back to court to reduce the child support amount and my husband want so know if he can get and order to have his ex partially responsible for the large debt they acquired while together or if 5 years is just too long?? Also how long is too long to get a court order separation agreement in regards to Debts and assets in the relationship??

[paris]

Court order separation agreement? Can't do it. It's been 5 years, and he's already remarried. I believe the timeline to apply for debt division is one year.

He needs to apply for a variance on the amount of child support based on his current income.

[FL_Needs_To_Change]

I think he may have long passed the time frame for any rights to asset splitting etc.
From what I understand there is a two year limitation on applications for the division of property.

It would be wise to seek to get a consult with a lawyer to review any rights he may still have. CS, however, can always be varied when income changes.

[Brandyb]

Well we are already doing that and she now wants him to pay extra expenses that would have been way out of their means while they where together and are still out of his means. We are thinking of filing a hardship claim due to the 2 children we have together and his unusually high debt payments incurred while they where together. Her house hold income is a lot higher than ours and I haven't been able to find day care for my kids who are under 3 so I can work and contribute. My husband does have a legal obligation to support our children too... how far into poverty do we have to be before that gets taken into consideration. We only moved back from Alberta to be closer to his kids. Do you think the judge will take that effort to be in their lives more into consideration?

[FL_Needs_To_Change]

This is going to be hard to stomach, but the reality is that the children in the paying parent's life are not considered. The only time your children will be considered is if you got a divorce, then he can seek to have CS set for the two independent families, by considering both obligations to support these two families.

I have hear many horror stories of second wives being told that they knew what they were getting into when they got involved with this person, and they knew what the financial consequences were for having a second family with a man who already had a family to support, and were basically told to go out and get a job to support their children.

The FL system is very far behind the times. In today’s world of ever increasing divorces and second and third families, there is no accounting for the many financial obligations that goes along with moving on in your life.

The system in my opinion is set up to allow the custodial parent to move on and have many choices for themselves and their families including starting a second family without much worry. However, the non-custodial parent is basically expected not to engage in a second family or relationship because of the financial obligation to the first and the fact that the second family will not be factored in until it too has broken down. It's a sad state, but that's where we are.

A claim for hardship is very difficult to win. If he is claiming solely on his obligation to support a subsequent family he will be hard pressed to convince the court that his situation is "undue" or "extraordinary" relative to his situation.

Here is a case law to look through, ( CanLII - 2005 ABQB 911 (CanLII) ) & here is a snippit from it about obligations to pay, However, a payor spouse who remarries is not permitted to rely upon the obligation to the second family as justification of an inability to pay support for a child from the first family. Second family obligations are undertaken with full knowledge of the first family obligations: Greco v. Levin reflex, (1991), 33 R.F.L. (3d) 405 (Ont. General Division).

CanLII - 2001 SKQB 158 (CanLII)

This link is again a father claiming undue harship at the present CS, and is asking for consideration for his second family and the fact that the receiving parent has a higher standard of living affording $5000 trips etc.

The procedure to be followed by the court when one of the parties makes a claim for undue hardship is set out in Messier v. Baines 1997 CanLII 11210 (SK Q.B.), (1997), 161 Sask. R. 132 (Q.B.). In that case Madam Justice Wright stated at para. 8:

[8] Section 10 contemplates a twostep analysis. First, the court must be satisfied that circumstances exist which would cause the applicant or a child to suffer undue hardship. Section 10(2) sets out a nonexhaustive list of circumstances which may cause such undue hardship. Second, even should a determination of undue hardship be made, the court must still deny the application unless it is satisfied that the applicant's household standard of living is lower than that of the other spouse. The onus of establishing circumstances of undue hardship and of a lower household standard of living is on the person applying. [Emphasis in original]

Second families, and the associated legal duty to support a child of that family, are not uncommon. The assumption of such new obligations may by necessity create a certain degree of economic hardship. That hardship is not however necessarily "undue". Similarly, the mere fact that an applicant's household standard of living is lower than that of the other spouse, due in part to the applicant's legal duty to another child, does not automatically create circumstances of undue hardship.

This dad won the claim of undue hardship, and is a case to ear mark for future referance for all forum members in this situation.

[Brandyb]

I have to say that is really hard to stomach. I hope that in years to come some one sits down and takes a hard look at how the child support guidelines are holding people back and pushing young families into financial ruin. I am not disputing the fact that my husband is obligated to support his first children. I just think that the amount shouldn't be so high that he can't commute to his work and provide food and shelter. I think each case should be looked into individually. I could see his children with me not coming not play if they where over the age of three. however their age makes it almost impossible for me to get them into daycare for a monthly fee a minimum wage job could support. As it stands now I have no education and in this economy I would be lucky to earn $8 an hour part time. we have found that it actually would cost more money for me to go to work than I could earn. It's a crappy situation. I am hoping that when we got to court the judge will take in all the aspects of our circumstance as well as that of his ex. but when push comes to shove we will keep a roof over our heads and food in our bellies above all else. We will do our best and cross our fingers... Wish us luck