A case for Undue hardship

[tugofwar]

What is involved if one person is going to file for undue hardship. What does this involve and what are the circumstances involved? How does the courts (especially the judge) handle this?

[NBDad]

The Federal Child Support Guidelines: Step-by-Step

It's virtually impossible to pull off for a father, most lawyers won't even attempt it. The family law system is heavily biased towards the mother.

There must be a "drastic" difference in standard of living between the two households to even have a chance of pulling it off. Drastic is up to the discretion of the judge, hence why it's so hard to do.

That and judges hate to reduce CS in this manner. Your ideal situation would be to suck it up and pay the table amounts for the duration of the year, and then make sure you adjust them when you receive your notice of assessment accordingly. (As the situation that results in your "undue hardship" should affect your line 150 amounts, and by association, your CS payments for the following year)

The table amounts suck, I think the general consensus is that they are way too high and do not accurately reflect reality.

[tugofwar]

I was just wondering incase my ex was going to try to do this. What happens with it being so close to tax season to have this years tax return included in an agreement? We are in the process of getting a court application done and by the time this really gets started Im guessing it might be a few months. How can we go about using this years tax income to determine cs etc?

[NBDad]

Do both of you have the children over 40% of the time? ie. 60-40, 50-50.

For 40% (or more) access for each parent, usually CS is the difference in the table amounts. (You look at what you would pay your ex based on the table amounts if they had full custody, then take what your ex would pay you if it were the reverse. Subtract the higher # from the lower and whoever is assigned the higher # pays the difference) (ie. you make 50000, your ex makes 30000, you have 2 kids and live in Ontario....you would pay your ex 309/month. (difference between your ex's cost of 444, and your cost of 753.)

You should have a rough idea of your ex's income, so even if they don't cooperate by proividing the notice of assessment to you/your lawyer, you can at least guess-timate the line 150 and calculate accordingly. At least that way it shows the intent to pay CS and be fair about things.

For LESS than 40% access it's even easier...whoever has the access under 40% would take their line 150 of your notice of assessment, find that number on the CS tables...and find the number of children involved....where the columns meet is a nice little number...that's what you pay. (Using the same example above, you make 50000, live in Ontario, and have 2 kids. You also only have the children every other weekend (so less than 40% access...in this example you would pay your ex $753/month)

Tables can be found here:

Federal Child Support Amounts: Simplified Tables

Also note that in the first example (60-40 or 50-50 access) both parties are entitled to share the CCTB/UCCB. (It'd be classed as a "shared" arrangement under the Income Tax Act, so you'd do a 6 month - 6 month split)

[tugofwar]

I was doing a little light reading about Undue hardship and came across this statement


Family Law Toronto :: Child Support - Family Law :: www.familylawtoronto.com



Briefly, the grounds on which this request can be made include the following:
• The payor or recipient has an unusually high level of debts reasonably incurred to

support the spouses and their children prior to the separation or to earn a living.


After reading this I recently did receive an email from my ex stating something similar to this even though he did not contribute to anything extra for the child besides putting a roof over her head.

Im left wondering if this is what he is going after......


what's defined as unusually high level of debt? Like $25,000 and up?

[billiechic]

I think unusually high debt would mean that the debt is so high that you cannot even make the minimum payments. Just think, lots of people have debt over $25,000...they have mortgages!

[NBDad]

It'd be a high level of debt to the point they couldn't meet their own basic necessities. Like I said before, it's near impossible to pull off for a father.

Really depends on the judge and how drastic a difference in the household standard of living you are talking about.

[Mess]

My ex had around 50k debt, credit cards and line of credit from during the marriage, on a 70k income. (This had a lot to do with us splitting up but that's another story). Tried to claim undue hardship but the judge wasn't the least bit interested in that argument.

[tugofwar]

I think unusually high debt would mean that the debt is so high that you cannot even make the minimum payments. Just think, lots of people have debt over $25,000...they have mortgages!

He`s not been making the minimum payments on our joint line of credit. He was before but after he got a lawyer all of a sudden he wasnt making the min payments and later and later.....

I think he`s going to attempt going down this road...

both of us have close to same amt of debt under $25,000.

[NBDad]

Its a long shot, at the very very best for him. Just make sure that you get something as part of your agreement that the CS payments are adjusted anually based on the tax returns. (line 150).

That'll protect both of you in the event of any major changes to your incomes.

Is he currently paying you CS? Is it the correct amount or is he not paying anything right now? If he isn't paying CS at all, he's going to look really really bad in front of a judge. (assuming your situation warrants CS of course...if you both make similar amounts and share access, then it might negate each other..)

[tugofwar]

No child support for almost a year. We made about close to the same amount of money. He recently started his own business, probably going to claim a loss for the last two years.
I did ask for the cs payments to be adjusted annually becuase I know he will have good and bad years.
That's what does make sense, he's seen a lawyer and yet still hasn't paid anything for cs. THat's what has me and my lawyer alittle confused.

[tugofwar]

What if I have an email stating a financial settlement regarding the mat.home that he proposed a few months ago? Would that not work against him? Im just not sure what he will accomplish if he does claim undue hardship?
Lower cs, doesn't have to pay day care and extra expenses covered under section 7. What else?

[NBDad]

So you've received 0 in CS from him for nearly a year AND he quit his job to start his own business...with which he is going to try to claim a loss....

Man oh man, the courts will eat him alive. If he wanted to make a case for lower CS, he should be paying you the lower number to establish status quo. But not paying anything? Not smart.

He's likely looking at full table amount (and you could argue an inputted income for him based on his OLD job, because that's what he's able to make...or argue for CS to be based off the average of the last 3 years income tax.) PLUS arrears.

If you have similar levels of income + debt, that means your standards of living are close. No way he'd be able to claim undue hardship. (Like I said it's a long shot to begin with, but not paying anything at all...LMAO)

[tugofwar]

The sad part is all he is focusing is on himself and the $$$. Poor, poor guy.
Where I am focusing on our child and when she goes to bed....then I start dealing with everything. Just keeping strong, what else can I do.

[tugofwar]

The Federal Child Support Guidelines:
Step-by-Step

More information on calculating annual income

Other factors in determining annual income

To properly apply the guidelines, you need an accurate income amount—one that fairly reflects actual income. You may consider several factors:

• Whether your income has increased or decreased over the past three years.
• If your income has fluctuated over the past three years.
• If you have received a one-time amount of money (for example, an inheritance) all, some, or none of this amount may be included.
• If you had exceptional business or investment profits or losses during a particular year.