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-   -   Help with hardship application : Motion to change (https://www.ottawadivorce.com/forum/showthread.php?t=21855)

jlewis 05-23-2018 08:46 AM

Help with hardship application : Motion to change
 
Hi,
I'm helping out a friend (Southern Ontario) and I'm looking for some guidance on applying for hardship.
Father is struggling to support new family and frequently in the red. Fully up to date with support payments to ex, sometimes in arrears due to income issues, but pays up before any warning from FRO.

As I understand he needs to file a 15 and 15A and petition the court for support reductions. We filled out a "Worksheet 3: compare households standards of living" and has a lower ratio than the mother in her new home.

Is there any advice on how to proceed. I doubt he can afford a full time lawyer and will likely do this himself with help from friends etc. What effect does Worksheet 3 have? What sort of things should he expect? Any general advice or observations?

I have listed the basics below. let me know if I've left anything out

Thanks


Basic facts:
Divorced after 10 years of marriage. Two girls aged 11 and 9
Mother has custody of both kids and support payments of $900 per month (reduced by $150 till 2022 to cover debts paid by father). No spousal support.
Mother has moved in with new fiance (he has one adult child), Mother has kept previous house received in settlement and uses as rental income.
Settlement out of court in October 2014. Mother had lawyer draft agreement, father had no lawyer but signed it.

Father has young child (almost 3 years old) with new common law partner. Partner in full time college, does not work.

Mother earns: $31,000
Mothers Fiance earns: $64,000

Father earns:$67,5000
Common law earns $0

Janus 05-23-2018 08:56 AM

General advice:


Somebody earing $67,000 per year has almost no chance of successfully claiming hardship. This is especially true given that mom only makes $31,000. Even if he doesn't have a lawyer, when he loses he might have to pay for mom's lawyer. The fact that father's new girlfriend is an unemployed loser is his fault, and will have no effect on CS calculations.


Hardship has a very difficult threshold, and your friend is not even remotely close to that threshold.


Bonus: Father is underpaying CS based on his income. Expect it to revert to table amounts if he is dumb enough to take this to court.

kate331 05-23-2018 09:00 AM

I think he is shit out of luck. Why would he start another family when he knew he had an obligations to the first? The Mother of the second child should be working f/t and going to school p/t to make ends meet.

Why should the first children suffer because of his and his new partners choices???

arabian 05-23-2018 09:22 AM

Mom of 3-yr-old can't get a job?
College is a luxury, not a right.
You knew he had another family.
I agree with Janus, this is going to come back to slap you in the face. Hard.

rockscan 05-23-2018 09:45 AM

1. Moms fiance income means nothing
2. Moms income and rental property mean nothing
3. New family means nothing
4. He makes over 50 grand, hardship means nothing

He needs to pay his cs and reduce his other expenses. His first family takes precedence over his new family.

jlewis 05-23-2018 09:54 AM

Quote:

Originally Posted by rockscan (Post 228872)
1. Moms fiance income means nothing
2. Moms income and rental property mean nothing
3. New family means nothing
4. He makes over 50 grand, hardship means nothing

He needs to pay his cs and reduce his other expenses. His first family takes precedence over his new family.

Ok thanks for the heads up.

This Worksheet 3, that he filled out asks for income from both families. I found it here http://www.justice.gc.ca/eng/rp-pr/fl-lf/child-enfant/guide/step8-etap8.html

it seems to imply that her new fiance (and his new common law partner) do factor into a hardship claim. Do you know how and when this would be used?

Thanks

HammerDad 05-23-2018 04:32 PM

The ex's new spouses income is less important that your friend's new girlfriends income.


Neither the ex or their spouse are making significant amounts of money. They would be classified as middle-class by nearly anyone. So it is unlikely a judge will find that there is such a discrepancy that c/s should be reduced.


Your friend doesn't need to claim undue hardship IMO. Your friend needs to get his g/f to get a job. That would equalize the households. The new child is well old enough that the g/f can get back in the work force. And that is likely what a judge will see. It isn't c/s that is creating undue financial stress, it is the decisions in your friends house that one party not work that is killing their financial wherewithal. Going to college is nice and all, but again, it was a decision within your friends house that has limited their income. Plus, college is temporary. The new common law partner will graduate eventually and will then be contributing to the household. And by the time your friend makes it to court to argue why they should pay reduced c/s, graduation could be near future.


Your friend can spend a lot of money in legal fees and likely fail, or he can encourage his new partner to get back to work. Their decision to have a child together should not negatively impact his children from his prior relationship.


I say this as a support payor, who has paid religiously for years, without fail, even when it hurt and I was broke.

Rioe 05-23-2018 08:41 PM

Quote:

Originally Posted by jlewis (Post 228866)
Is there any advice on how to proceed. I doubt he can afford a full time lawyer and will likely do this himself with help from friends etc. What effect does Worksheet 3 have? What sort of things should he expect? Any general advice or observations?


He could probably have brief initial consultation with a few lawyers for free, and get a feel for what could happen. However, he will likely run into lawyers who tell a potential client what they want to hear even if it is nearly impossible in court. The lawyer gets paid, win or lose.


Meanwhile, do the research on 'undue hardship' including looking for similar cases on CanLII. That will also give him a feel for how things would likely turn out for him.


Quote:

Originally Posted by jlewis (Post 228866)
Divorced after 10 years of marriage. Two girls aged 11 and 9
Mother has custody of both kids and support payments of $900 per month (reduced by $150 till 2022 to cover debts paid by father). No spousal support.
Mother has moved in with new fiance (he has one adult child), Mother has kept previous house received in settlement and uses as rental income.
Settlement out of court in October 2014. Mother had lawyer draft agreement, father had no lawyer but signed it.

Father has young child (almost 3 years old) with new common law partner. Partner in full time college, does not work.

Mother earns: $31,000
Mothers Fiance earns: $64,000

Father earns:$67,5000
Common law earns $0


He's agreed to a system of more than 60% access to the mother, and him paying table CS, while she pays him $150 a month towards the off-kilter equalization in her favour. This results in $900 a month changing hands. Do they adjust annually based on his income fluctuations? Hopefully so. It sounds like a fairly straightforward agreement even though he didn't have a lawyer look over it for him. No problems so far. Though why didn't he go for 50-50 access? Big mistake in many ways.



To meet the stringent test of undue hardship, his household basically has to be in financial trouble, not just have less income than the other household. Have he and his CLS given up cable TV, do they visit food banks, is she incurring the maximum student debt she's eligible for? Is she unable to get a part-time job, or reduce her program to part-time so she can work full time and help out? Can they sell their house and rent a smaller place? That's the extreme sort of not coping we're talking about for undue hardship. Going for undue hardship is the last resort, after all other measures have been exhausted.


He went into these new obligations fully understanding that he already had financial obligations to his existing children. Did he and his CLS not consider this when they decided to have a child? When the CLS decided to go to school instead of work?



Also, the other household has to have a significant enough income that any loss of CS is basically meaningless. I don't think losing $900 a month would go unnoticed over there. Undue hardship is much more likely in cases where the CS recipient household income is several times greater than the CS payer household income.

Tayken 05-24-2018 10:09 AM

Your friend is doomed.

The first step is to determine if there is hardship and that burden falls on your friend. An income of 67,000 is not a hardship situation. To even get to the point where the incomes of other non-parties are involved you have to meet the hardship exception which your friend does not.

Furthermore, your friend is admitting, against interest that the other parent's partner is a parent in loco. You really want to give the court the impression that you cannot parent the children and need someone else to step in your place.

Good Luck!
Tayken

jlewis 05-24-2018 01:05 PM

Hey Guys,
Thanks for all the responses, they have been really helpful.
So it sounds like my buddy is SOL, I'll go over his options and maybe get a better budget sorted out.
All points are valid about his decisions; not fighting for 50/50, getting into a new relationship (family) etc. It certainly is a lesson for others that's for sure.

Thanks again for all the help
Jlewis


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