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Claiming undue hardship

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  • Claiming undue hardship

    My common law spouse and I have 2 young children together and I have a son from a previous marriage living with us. My spouses 18 year old son is moving back with his mother. He is still trying to finish high school. I did the calculations and her total income including income tax returns and baby bonus isn't much less then ours. We currently pay $107, the difference in support amounts as he has a 16 year old daughter with the mother as well. The amount would go up to over $500 month + 60% of all her hockey and school trips. We declared bankruptcy over the summer and have no savings, leaving us with $30 at the end of the month. We can't afford a lawyer and if child support ends up being more than $130 a month we'll have to split up the family and I'll just be another single mom living off child support and Baby bonus. I want to declare undue hardship but I'm worried about not having legal advise. I live in Ontario, and I'm sorry for such a long story!!

  • #2
    Maybe you didn't word that quite the way you meant, but you personally can't claim undue hardship, you aren't involved in this (I know you are in practice but not for the law).

    You should have been paying your proportionate share of "special expenses" which would include hockey anyway, so this should not change.

    The difference is you are looking at your husband paying support for his son who is now living with the mother.

    The amount the mother earns does not figure into this. If she earned a million dollars a year, your husband would still be bound by law to pay support for his child. Of course in extreme situations like that people come to private arrangements, but the point is, it's not about how much she earns.

    Not affording a lawyer is kind of the least of your worries, you are legally obliged to pay child support no matter what the lawyer says or does. Your best option is to try to negotiate a reasonable deal with the mother, hoping she understands your situation and is sympathetic. If she isn't, you really don't have much to argue back with.

    The children in your household don't stop your husband from being obligated to support his children with the other mother.

    Here are some cases cited on a lawyer's website arguing both sides:
    Other Children Yes

    Some cases allow an undue hardship claim on account of children from previous relationships where support is being paid out or one supports children within a new relationship:
    • Hughes v. Bourdon, August 5, 1997, [1997] O.J. No. 4263. (Ont. Gen. Div.), Aitken, J. At paragraph 17 the judge sensibly notes that his order will affect two other children and therefore, "I have to take into account the best interests of all children involved."
    • Baryani v. Longe, February 10, 1998, [1998] O.J. No. 606, (Ont. Gen. Div.), J. Wright, J. (However, the real reason here appeared to be the payor's high accommodation costs relative to his meagre income.)
    • Jacques v. Jacques, May 12, 1997, Sask. Q.B.
    • Hedderson v. Kearsey, February 24, 1998, [1998] N.J. No. 62 (Nfld S.C. - U.F.C.), L.D. Barry J.
    • Butler v. Ryan, March 5, 1998, [1998] N.J. No. 63 (Nfld S.C. - U.F.C.), L.D. Barry J.
    • Thompson v. Thompson, April 16, 1998, [1998] B.C.J. No. 963 (B.C.S.C.), Cowan, J.
    Other Children No

    Most of the cases will not permit a payor to rely on other children as a ground to reduce his support:
    • Claridge-Skof v. Skof, July 11, 1997, [1997] O.J. No. 3112, (Ont. Gen. Div.), MacDougall, J.
    • Smith v. Stebbings, July 22, 1997, [1997] O.J. No. 4605. (Ont. Gen. Div.), Aitken, J.
    • Swift v. Swift, February 5, 1998, [1998] O.J. No. 501, (Ont. Gen. Div.) Robertson, J.
    • Middleton v. MacPherson, June 12, 1997, Alta Q.B., Moreau, J.
    • Tallman v. Tomke, June 27, 1997, Alta Q.B., Wilson, J.
    • Nagy v. Tittemore, December 30, 1997, [1997] S.J. No. 810 (Sask.
    • Lovell v. Nolan, April 7, 1998, [1998] N.S.J. No. 149, Legere, Fam. Ct. J.
    • Paul v. Pisio, April 17, 1998, [1988] S.J. No. 243 (Sask. Q.B., Fam. Law Div.), Dovell, J.
    It is hard work slogging through reading all of those cases, you may want to look them up if you want to research your odds before you spend your last cent on a lawyer.
    I think your best option is to try to get the other mother to go to mediation and work out a budget that will support both families.


    • #3
      It involves every income earner in the house if we go undue hardship, which we will. We weren't paying extraordinary expenses since we each had a child and they cancelled each other out. The sad part is that she bribed him to go live with her as her only concern is the dad paying for the daughters college. She doesn't believe in OSSAP. I will kick him out if support is not affordable and he can pay me support as well for my 2year old and 3 year old. Harsh I know, but I'm not losing my house over 2 kids, one over the age of majority, and have jobs and can contribute themselves. Wish us luck, cause I know we'll need it.


      • #4
        Or you can kick him out and he will go for shared custody. That would mean you probably get nothing from him. And you will try to convince the kids to stay with you, so you can pay off your house. Which makes you better than the other mother exactly how?

        I understand that you are upset and scared, but please try to work out something other than that plan.

        You WERE paying extraordinary expenses, if they cancelled out like that. If you weren't paying, there was nothing to cancel. If the boy leaves home, then paying for the expenses will amount to the same thing in your budget.

        The only change is the support your husband will pay his ex for the boy. CS usually doesn't end up equal, I mean he will pay a bit more out in CS than it cost to pay for food, clothing and transportation while the boy was with you, but it certainly doesn't mean you are out of pocket the way you are implying.

        It's not that I'm trying to be hard on you here, but you have to make these arguments to a judge who has heard them all a thousand times, and you have to somehow show that your situation is different, and it really isn't.


        • #5
          We will. Any other info you may come accross would be wonderful. I've spent alot of time studying cases and undue hardship is a deffinate solution, depending on the judge. We have the lower standard of living by more than 1%.


          • #6
            You won't like to hear this...but to set your expectations accordingly, you probably WON'T pull this off.

            In fact, you may get slammed with HER legal fees as well if a judge decides you are wasting the courts time by trying to fight it.

            To put it bluntly, a father has a snowball's chance in hell of pulling off an undue hardship claim in all but the most extreme circumstances. And to be honest, yours is NOT extreme.

            (For your reference, in my situation I have 10 family members when I include my children, my ex would have had 6 including the kids. The difference in our household standard of living, at least on paper, was almost a 50% her favor...despite her being on assistance. I was told flat out by my lawyer to save my money. So a 1% difference in household standard of living is...nothing)

            The 18 year old is "still trying to finish high school?" How many years does he have left? Once he hits 19 and if he's still in high school, you can make a case to terminate support. (Let's face it, if he hasn't graduated by the time he is 19, his best bet is likely to get his GED and go to community college to upgrade if he wants to.)

            Keep in close contact with the high school, if he drops out, stops going or otherwise moves out on his own....make the case to terminate support.

            In any event, what you have already been told is the truth...the overall difference is going to be minimal. Take out the cost of clothing, feeding, sports, activities, etc, for the child...I'd bet you would probably SAVE money. Heck, I remember what I used to eat like when I was 18, your grocery bill alone will probably make up most of your difference.


            • #7
              The sad part is that she bribed him to go live with her as her only concern is the dad paying for the daughters college. She doesn't believe in OSSAP
              Almost forgot...whether she believes in it or not, BOTH children are obligated to contribute their own fair share to the expense of going to school....they have to apply for bursaries/grants AND OSSAP if they qualify.

              If the children do not apply for things they qualify for (and a quick search of the post secondary program they are applying for will usually tell you what's available to them) then you have a decent chance at arguing that you shouldn't have to pay as much.


              • #8
                He's been gone off and on for a few months now and our budget is down to the last $1. I have to roll quarters to save for an extra trip to town for a dr's appnt. How could a judge order us to pay an extra $450 + a month when we don't have it. We already work as many hours as we can. My hubby drives a truck with a pay the fluctuates and I drive a school bus, bringing the kids with me, with no other work cause I can't afford daycare.
                Thank you so much everyone for being so helpful, as hard headed as I'm being accepting what will probably be.


                • #9
                  The judge doesn't care about any of that. Whether you are working or not, whether there are no more hours to be had or not....the bottom line becomes the children have a legal right to support.

                  "My hubby drives a truck with a pay the fluctuates"

                  Unfortunately support is based off line 150 income tax amounts. So it may fluctuate month to month, but in the months where he makes MORE than average he needs to be saving the extra for the lean months. (I know it's easier said than done)

                  If he's NOT working as much in a month, that should mean he's available for other work and should be looking for it and pursuing it.

                  I'm not saying any of this to put you down, but these are the kinds of arguments you can expect to run into and have to justify.

                  Hockey expenses are only one season/year, so you have a couple of months to try to sort something out.

                  School fees/trips/etc would be what CS is for. You aren't obligated to nickel and dime everything to death. If the ex can be reasonably expected to cover the item based off her income + the CS, it's not a special expense.

                  Good luck to you. Depending on how amicable things are between your husband and his ex, he should be very seriously trying to settle with her. Perhaps she'd be willing to settle for a reduced amount for a couple of months, until you get back on your feet.


                  • #10

                    I am sorry to hear of your dilema, but the above advice is pretty much the way things are now.

                    Attached is a petition for second families who believe the system needs changes. We believe, as finances are shared between both families (CS, extras), then ALL the children in the "extended" family should be taken into consideration, not just the "first" ones.

                    Canadian Child Support Guidelines are Unfair to "Second" Families Petition

                    Good Luck.


                    • #11

                      You have received some truthful advice.

                      I empathize with your situation. I too share your concerns and have been trying to find a way to have a judge make a ruling similar to that of the Australian child support guidelines... but in our experience, no matter how much you try and how many valid reasons you provide, the judges seem to always rule in favour of the biological mother of the child(ren) for whom support is being paid/received.

                      It is very frustrating. I wish you the best of luck. Please keep us posted on your progress. I'm sure you're experience will provide some wonderful information for others, such as myself.

                      All the best to you and your family.


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