Announcement

Collapse
No announcement yet.

Undue Hardship

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Undue Hardship

    How is undue hardship determined?

    Before we made the decision to separate, my ex decided to take a new job which would pay much less than his previous job. We separated before the new job started - this new job is far away and means that he will only get to see the kids once or twice a year max (his old job paid very well and had lots of holiday).

    After the separation, he still had the option of staying with his old job but he still made the decision to quit (after six months of separation).

    He is claiming undue hardship on imputed income calculations - what happens if he really can't pay now that he has changed jobs?

  • #2
    I have read here on many posts that when deciding support issues the level of income can be imputed to a level that represented an income level that the person is capable of earning - even if that meant having to change jobs ( back to the old one! I guess this issue is somewhat captured in the three year averaging that is used to determine "reasonable" income levels if income varies or in some cases is increasing every year (say for increasing job responsabilities) then the income would not be an average but more an estimated income which the three previous years is the data which is used to determine that fair level of imputed income.

    Perhaps the opposite but true anyway - what about the spouse that vows poverty and to run from the law in order to not pay one red cent in support. You can't get what there isn't any to give but life can be made hard for the payor as a result. Everything should be within reason but as I have learned there is no real fairness in our system.......

    Comment


    • #3
      Originally posted by LotusFlower View Post
      How is undue hardship determined?

      Before we made the decision to separate, my ex decided to take a new job which would pay much less than his previous job. We separated before the new job started - this new job is far away and means that he will only get to see the kids once or twice a year max (his old job paid very well and had lots of holiday).

      After the separation, he still had the option of staying with his old job but he still made the decision to quit (after six months of separation).

      He is claiming undue hardship on imputed income calculations - what happens if he really can't pay now that he has changed jobs?
      Talk to a solicitor. Undue hardship is a hard claim to make. If the other party is working under capacity to what they should be that will be taken into account. It is a very complex issue to deal with. From my perspective it is a hard claim to make.

      Good Luck!
      Tayken

      Comment


      • #4
        Just because he can make more, why should he have to?

        His actual income should be used for support calculations, especially considering that his decision to change jobs was made before separation.

        Is he some sort of work horse, bound to do what he does not want to do just because you want him to?

        Sick to force someone to work a job they themselves don't want to do, or to impute a fake income. It is not a question of him working or not, he is working. Don't we all have a right to pursue happiness?

        Comment


        • #5
          Thanks for the judgement, billm, but it doesn't answer my question. I don't give a rat's ass about your opinion or judgement of me - I was asking about the legal implications of his claiming undue hardship.

          Comment


          • #6
            In my opinion, which isn't that of an expert. I believe he would be intitled to claim undue hardship.
            He would have a hard time had he switched jobs after your seperation in an attempt to lower income thus lowering his support. Inputting a trumped up salary I believe falls under these circumstances and not in your situation.
            Again I am no expert mind you.

            Comment


            • #7
              Your legal argument needs to address all of the questions bill raises. The courts do recognize that people have a right to change jobs and for reasons of happiness and stress, mot just the job market. Your ex will have to explain himself and you will have to address the same issues.

              Comment


              • #8
                At the end of the day an undue hardship claim is extremely difficult to pull off. He has a better chance of requesting his actual income be used rather than a false imputted one.

                Comment


                • #9
                  Another question - what about benefits? Do they count towards the calculation of income? He took this job because the employer will cover the costs of courses towards a degree, and accepted a lower salary for that reason.

                  Comment


                  • #10
                    Originally posted by Mess View Post
                    Your legal argument needs to address all of the questions bill raises. The courts do recognize that people have a right to change jobs and for reasons of happiness and stress, mot just the job market. Your ex will have to explain himself and you will have to address the same issues.
                    I doubt that my legal argument needs to address whether or not I am 'sick', and I doubt it will need to address such a whiny emotional diatribe as billm presented here. He clearly has his own personal opinions of the concept of imputation of income, but that has nothing to do with what's legal.

                    Each of billm's arguments are hinged on the idea that he should be able to do whatever he wants to and that supporting his children (and spending time with them) should be a lower priority than 'following his bliss'. If the courts see this issue the same way, then I don't really get how anyone can complain that guys get screwed over in this system when they can just switch to jobs with lower income and move so far away from their kids.

                    My question was about how undue hardship is determined, and what happens when a person really can't pay. I didn't ask for a judgement here, I asked for info on what they base these judgements on in court, and how these situations are handled. It's pretty hard for me to imagine a judge making comments like what billm made - his opinion of me personally is irrelevant and I don't care.

                    Comment


                    • #11
                      Originally posted by LotusFlower View Post
                      I doubt that my legal argument needs to address whether or not I am 'sick', and I doubt it will need to address such a whiny emotional diatribe as billm presented here. He clearly has his own personal opinions of the concept of imputation of income, but that has nothing to do with what's legal.
                      The "whiny emotional diatribe as billm presented here" is in fact the arguments that a judge on the bench often makes to people seeking employment income. There are good answers for each of his questions that judges often ask. You may not like how he provided his opinion but, they are still valid and relevant issues you will have to address in your materials (affidavits).



                      Originally posted by LotusFlower View Post
                      Each of billm's arguments are hinged on the idea that he should be able to do whatever he wants to and that supporting his children (and spending time with them) should be a lower priority than 'following his bliss'.
                      But, couldn't one argue that is the reason for seeking divorce? Because they were unhappy? It appears from your comments that the other parent is retraining for a new position. If the income difference on the new position is not 50% less than previous it is hard to argue the point. Especially if the sacrifice is for a future career that pays potentially more.

                      The counter argument is basically the retraining towards a future career with better opportunities. Many people think the change of income is for "personal" reasons to punish the other parent so they get less in support payments. This argument only works when the person is unemployed and not working and not making an effort.

                      Originally posted by LotusFlower View Post
                      If the courts see this issue the same way, then I don't really get how anyone can complain that guys get screwed over in this system when they can just switch to jobs with lower income and move so far away from their kids.
                      The complaint often made is that the formula used to calculate "support" is flawed not that the concept of support is flawed and shouldn't be paid. The complaint is about the math behind the calculations. Also, the complaint is often made about another parent who refuses to work. Everyone is responsible for supporting themselves and their children. There are circumstances that impact how much support someone gets... But, rarely they are a "life time" of support. All cases are different depending on age, availability of education, etc...

                      Why any parent would become financially dependent on the other parent is beyond reason to some. Child support is not a punishment to the person paying it. In fact, it should be worn as a badge of honour by the parent paying it for actually investing in their career and making a good income that can support their children.

                      Originally posted by LotusFlower View Post
                      My question was about how undue hardship is determined, and what happens when a person really can't pay. I didn't ask for a judgement here, I asked for info on what they base these judgements on in court, and how these situations are handled. It's pretty hard for me to imagine a judge making comments like what billm made - his opinion of me personally is irrelevant and I don't care.
                      In your situation, it sounds like that there will be no child support due to a balance of incomes or something like that. So, it really isn't "undue hardship" unless you are unemployable. But, based on your writing and knowledge I doubt you are unemployable. So, you may be indeed upset that had the other parent remained in their career (or job) you may have gotten child support.

                      Rather focusing on how much you can get from the other parent. Focus on how much you "need" really. After separation life styles change. Things can get better but, don't be dependent on the other parent to make this happen. Separation and divorce is about moving on to a new life. It shouldn't be a fight to see how much support you can get from the other parent.

                      Good Luck!
                      Tayken

                      Comment


                      • #12
                        The Federal Child Support Guidelines: Step-by-Step

                        That should tell you what you want to know about undue hardship and the process to claim it.

                        You WILL need to think of arguments to what billm has indicated. If you ex or his lawyer has half a brain in their head, that is EXACTLY what they will likely do.

                        The decision to change jobs was made BEFORE separation, ergo it's not a new thing.

                        He took the job in part because of the benefit of having a degree covered, which will allow him to improve his skill set and hopefully have better employment opportunities in the long term, that will allow him to earn a greater amount of money, which will allow him to move closer to his children, provide for them and increase his parenting time.

                        If it were me, I would be focusing on those items hardcore. I wouldn't be claiming undue hardship, but I WOULD be trying to get my actual income used instead of an imputed income.

                        Without knowing the rest of the story, ie. was his income based on an abnormally high amount of hours, overtime, or was the job extremely stressful? Was it something he enjoyed or was he shoehorned in due to the financial aspects when the two of you were still together.

                        He has a right to move on with his life, and if that involves taking a lower paying job, and being able to work on a degree, that's his choice. If he's still paying support and is willing to pay support on his existing income, then why are you fighting with him over this? It's teetering dangerously close to it making you look like all you care about is money.

                        Unless he's making minimum wage flipping burgers, and is coming from a 6 figure executive salary....you are being unreasonable and he is well within his rights to fight you on this. If he plays it correctly you will most likely lose this battle and may face paying his costs.

                        Comment


                        • #13
                          Originally posted by Tayken View Post
                          But, couldn't one argue that is the reason for seeking divorce? Because they were unhappy? It appears from your comments that the other parent is retraining for a new position. If the income difference on the new position is not 50% less than previous it is hard to argue the point. Especially if the sacrifice is for a future career that pays potentially more.
                          The reasons for the separation and divorce are irrelevant. The new position pays less than one third the salary the old position paid, is farther away from his children, allows for far less holiday time in which to see them, and is funding a degree that will never benefit them. There is no way that he can argue that this change was going to benefit his children in any way.

                          Comment


                          • #14
                            Originally posted by LotusFlower View Post
                            Another question - what about benefits? Do they count towards the calculation of income? He took this job because the employer will cover the costs of courses towards a degree, and accepted a lower salary for that reason.
                            It would all depend on how the employer reinburses him. If he pays for the education out of his pocket and gets reinbursed as a employment expense then I dont think it would impact CS or SS.

                            For example when I travel for my company which is a lot. I get per diems for food, taxi's entertaining clients and such. This money gets added to my pay cheque. However this money is non taxable and is not included on the line which my ex and I use for CS and SS calculations on my T4.

                            Comment


                            • #15
                              Originally posted by NBDad View Post
                              The Federal Child Support Guidelines: Step-by-Step

                              That should tell you what you want to know about undue hardship and the process to claim it.

                              You WILL need to think of arguments to what billm has indicated. If you ex or his lawyer has half a brain in their head, that is EXACTLY what they will likely do.

                              The decision to change jobs was made BEFORE separation, ergo it's not a new thing.

                              He took the job in part because of the benefit of having a degree covered, which will allow him to improve his skill set and hopefully have better employment opportunities in the long term, that will allow him to earn a greater amount of money, which will allow him to move closer to his children, provide for them and increase his parenting time.

                              If it were me, I would be focusing on those items hardcore. I wouldn't be claiming undue hardship, but I WOULD be trying to get my actual income used instead of an imputed income.

                              Without knowing the rest of the story, ie. was his income based on an abnormally high amount of hours, overtime, or was the job extremely stressful? Was it something he enjoyed or was he shoehorned in due to the financial aspects when the two of you were still together.

                              He has a right to move on with his life, and if that involves taking a lower paying job, and being able to work on a degree, that's his choice. If he's still paying support and is willing to pay support on his existing income, then why are you fighting with him over this? It's teetering dangerously close to it making you look like all you care about is money.

                              Unless he's making minimum wage flipping burgers, and is coming from a 6 figure executive salary....you are being unreasonable and he is well within his rights to fight you on this. If he plays it correctly you will most likely lose this battle and may face paying his costs.
                              He went from a six-figure salary with nearly three months of holidays working less than 40 hours per week to a job roughly 1/3 of his prior income, farther away, and with only 4 weeks of holiday. He went from a job that would have given him the entire summer off to spend time with his kids to a job where he is parenting via Skype and seeing his kids twice a year if they are lucky. When he moved to the new job, he promised them he'd come visit between leaving his old place and moving to his new place and then told them at the last minute that he wasn't going to, that he was just going straight to his new place.

                              You do the math.

                              Comment

                              Our Divorce Forums
                              Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
                              Working...
                              X