Undue Hardship and High Access Costs

[Elomelo8387]

Hello,
My ex is claiming undue hardship citing high costs pertaining to access. We currently live about 3-4 hours apart in different cities. My son lives with me and I have been responsible for him since birth. In your respected opinions how would this play out in a motion? I don’t want to fight and want to come to a settlement but I want what is fair. The father sees the kid maybe every two weekends ( prior to Covid) and holidays was split. He also has a 6 figure income. The numbers he is spouting for access costs are absurd. He had a couple of receipts and claims he pays the rest in cash money. I am assuming he is cash strapped due to his own financial mismanagement. Would the undue hardship claim have any merit? We are both in Ontario. Any advice appreciated.
-Elo

[standing on the sidelines]

did someone move?

[Elomelo8387]

Mother moved away for work but this situation has been status quo for a while now. Undue hardship has been a recent phenomenon.

[rockscan]

If mom moved away and took kid then he gave permission for that to happen. There should have been an agreement about access costs and support as a part of that permission. As in, ok you can move but since it costs me $200 to travel to visit I want you to either pay that or reduce child support. That was his bad in agreeing to it.

As far as undue hardship is concerned to access his child, you can also disprove that one by doing your own travel search for sending kid to him or what it costs for him to come to you. He can find all the receipts he wants, if you can show “it costs $200 for one child fare from kids home to dads home” then his complaint is moot. You could also google standard mileage rates and calculate that for the distance. Again, he let mom move to he will need to argue that.

His salary, spending, financial management etc is irrelevant. What is relevant is that he let mom move and has left it as status quo. You could turn around and offer to send kid on transit to him for his parenting time or say you will reduce cs by $100 or so a month to accommodate this expense but ultimately since he has the problem he is obligated to prove the expense and why he didnt do anything about it.

Truly though, is this worth court costs and time? Can you work together so he can see his kid?

[Elomelo8387]

Offsetting some travel expenses sound reasonable. It’s the kids best interest to stay connected to the dad. In fact I would be agreeable to that. However he is trying to use high access to try and virtually reduce all child support. It’s extremely unreasonable and hence why this is probably going to litigation.

[rockscan]

Then the onus will be on him to prove it and a judge will look at your offer, his income and expenses and how this was agreed to. He cant reduce child support for access if he agreed to it and you offer a share of the cost. 2-3 hours is not far. My husbands costs for kids to travel five hours was never more than $200 which he paid as he moved—including when he was unemployed.

Plus if your ex argues undue hardship his household expenses will be scrutinized as well which means if he has a spouse and they have an income, both their salaries will be considered.

Best advice from me (and Im not a lawyer) is to make the offer to share the cost and then let him file the motion. The onus is on him to prove hardship and if he is still earning an income he will have a steep cliff to climb.

[StillPaying]

If this went to motion, it would seem reasonable for me that dad would get his access costs fully paid for as it was mother who moved.

Not sure what the schedule is, but if he's doing all the driving then it would seem fair that he charge you for 16 hours gas/maintenance, plus 2 nights at a hotel every 2 weeks.

How much are you both offering? You can also do all driving yourself and keep the full table amount.

[Elomelo8387]

But what if you are not staying at a hotel but rather friends or family. Similarly reimbursement of travel expenses is fair but I don’t think it should offset the entire child support amount.

[rockscan]

If this went to motion, it would seem reasonable for me that dad would get his access costs fully paid for as it was mother who moved.

What is reasonable for you is not what is reasonable for the court. Dad consented to the move without any conditions. That is the key. He should have asked for a reduction in cs as consent for the move to offset these costs. He didn’t which means a judge will see it as he was fine with it so what has changed?

Not sure what the schedule is, but if he's doing all the driving then it would seem fair that he charge you for 16 hours gas/maintenance, plus 2 nights at a hotel every 2 weeks.

There are other modes of transportation and as the child ages they are able to use those modes. If dad chooses to drive and stay in hotels to reap more money the court will not agree to it. More than likely they will look at the most cost effective way to allow parenting time and expect both parties to come to an agreement.

[StillPaying]

Your position is not reasonable and highly unlikely at court. Access costs are common, for much shorter distances than this.

Driving is usually the cheapest mode and you can't assume a friend's house will be available. Whether it's 16 hours plus 2 nights, or 8 hours and 4 nights at hotel, or bus/taxi/hotel... it's still going to be expensive, but unlikely to be the same cost as full table support.

What does the OP think an appropriate amount should be?

[rockscan]

Your position is not reasonable and highly unlikely at court. Access costs are common, for much shorter distances than this.

Driving is usually the cheapest mode and you can't assume a friend's house will be available. Whether it's 16 hours plus 2 nights, or 8 hours and 4 nights at hotel, or bus/taxi/hotel... it's still going to be expensive, but unlikely to be the same cost as full table support.

What does the OP think an appropriate amount should be?

If you had read the thread you would have seen she said her ex is trying to stop paying child support claiming his costs for parenting access are too high suddenly. He has had no problem for several years AND agreed to mom moving despite knowing he would have to incur costs. This isn’t a new situation and he has no change in circumstances that he has shown.

Mom has offered to reduce costs for the travel but not to zero and has said he stays with family. He has provided NO PROOF of his additional costs that make his access difficult.

This is simply a case of dad crying broke after several years of having no problem to get out of paying cs.

[StillPaying]

You seem to be assuming a lot. Ex is looking to reduce cs to offset access costs. This is directly addressed in 10(2)(b), and since mother moved the dad has a great shot at recovering his costs. Support and costs are often changed, no cic needed, whereas it would be if custody was being changed.

OP agrees that cs should be reduced. You can't force friends to allow him to sleep over, so if he's paying for gas/hotel and has receipts - mother should pay. He's paying ~$900/cs - I'd assume it would cost about $400/gas and $400/hotel per month. Dad's position sounds correct.

Dad's still paying proper cs, mother's just getting a reduced amount in lieu of her choice to move away for better employment.

[rockscan]

I’m not assuming anything. OP stated she moved and this has been the situation for a period of time. There was no agreement to reduce for her move and a judge will ask why suddenly it is an issue. OP stated he is claiming expenses with no proof, simply saying he paid in case.

Undue hardship to reduce cs is difficult to argue especially when he has agreed to it and has a history of doing it. The ex will also have to prove his expenses to reduce child support and since OP is offering to share travel expenses he will not be able to reduce it completely.

[StillPaying]

The ex will also have to prove his expenses to reduce child support and since OP is offering to share travel expenses he will not be able to reduce it completely.

Just like any expense, no receipt = no payment and you can't request high end refunds when cheaper options are available.

There are definitely high costs involved with this access due to mother's move for better employment. Seems reasonable that it could cost $800/month, maybe less if he's able to stay with friends.

Again, he is not looking to pay less child support. He's looking to pay no more than full table support due to mother's move. Mother can do all driving or half driving to reduce his costs, but why should he pay 100% or even 50% is additional costs so mother can move away for more money.

[Elomelo8387]

I appreciate all the feedback. It seems like there is a lot of factors involved. I don’t know what an appropriate amount for these costs will be since the receipts provided are not consistent. I’ll try to put a good offer to settle based on legal advice and take from there. But one thing is clear—- it seems unlikely that the entire CS would be abolished.