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Undue Hardship Question (Scenerio)

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  • Undue Hardship Question (Scenerio)

    My brother has been going through the court process to attempt to get his ex to pay CS & her share of post secondary as the oldest child is starting school in a couple weeks. (Both parties self-rep'd)

    WHY this hasn't been settled is beyond me. 2nd SC was supposed to be today but it got bumped to Sept 2 and then it will likely go to TMC.

    Today as they are leaving the courthouse and ex says "if you keep pursuing this I will claim undue hardship" ... now from what I've read on here and Canlii I don't think she has a chance in hell but I could be wrong:

    Bro makes $57,000 and has a new wife who earns $30,000 but has in excess of $20,000 still in student loans

    His ex earns $47,200 & based on CS Guidelines should be paying $701/mo in CS.

    2 kids both living exclusively with my bro and don't visit mom (long story there).

    Both my brother and his ex own homes. My brothers is the matrimonial home that he bought ex out of. Valued at $800,000 but with a $500,000 mortgage on it.

    Ex is in a condo valued at $280,000 with a $160,000 mortgage on it.

    She has no other outstanding debt or other child obligations. While we know she has a boyfriend, she currently lives alone (we think).

    Based on the scenario above how likely would a undue hardship claim be?

  • #2
    Slim to f all.
    Undue hardship is an extremely difficult threshold to meet.
    From my reading and understanding, she would basically need to have trouble putting food on the table and be living below the poverty line to even be considered.
    Last edited by OntarioMomma; 08-21-2014, 09:12 PM.

    Comment


    • #3
      I don't agree with Ontario momma's math (aka sell house, downsize, etc.). The purpose of undue hardship is to equalize two very different standards of living not just for the purpose of ensuring that the child has the necessities they need, but also can adjust CS if "In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II."

      SECTION 10: UNDUE HARDSHIP - Children Come First: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines - Volume 2

      However, you have said that:

      2 kids both living exclusively with my bro and don't visit mom (long story there).
      And I can only tell you what happened to someone I know. He too had a child that did not see him. It was the child's choice over the nears to not associate with his father. There was no reason for this (aka no abuse, nothing traumatic happened, etc.) and the father always maintained that he wanted to see his son and paid his support.

      Several years later the mother tried to increase her support for tuition costs as the child would be entering university in a few months. The judge actually terminated support and said: The child is old enough to go to war, to sign a legal contract, to purchase a house and this child has decided that he does not want a relationship with his father.... the father has met his obligations towards his child and his obligations are now done.

      Comment


      • #4
        While in the situation you described Serene I'd be likely to agree ... This situation is a tad different ... Separation occurred May 2011 ... Both kids resided with mom in mat home until Oct 2011. Lawyers involved & amongst parents decided that boy would stay with dad and girl would do 50/50 ... Big history of "scenes" caused by mom .. School principal involved, police involved, my parents involved to the point of me acting on their behalf sending legal letter advising ex to stop harassing (ie. stop,showing up at their door or phoning) ... Mom attends school events (ie grad) or sporting events but wants "control" ... As she's not getting it she's putting up barriers ... I TOTALLY understand how she's feeling as a mom of 3 boys & I couldn't imagine any of them shutting me out (then again meeting mom for Xmas shopping and things going haywire and having mom drop u off at home and standing in driveway screaming "she's your f'ing daughter u deal with the f'ing bitch" may tend to piss a 17 yr old girl off a bit, not to mention the embarrassment) ... but bottom line is they are still her children and she is still responsible for supporting them. And if genders were reversed I 100% believe there would be an order in place for her to pay table CS already ... This should NOT have been dragging on since Sept 2013, IMO

        (And for the record I DO receive CS so I'm not a disgruntled ex or new partner)

        TO ADD ... in Oct 2011 brother DID pay offset CS .. He had to threaten legal action in Feb 2012 in order to get ex to sign a amendment to release him from his CS obligation
        Last edited by DunnMom; 08-21-2014, 09:49 PM. Reason: To add info

        Comment


        • #5
          Originally posted by Serene View Post
          I don't agree with Ontario momma's math (aka sell house, downsize, etc.). The purpose of undue hardship is to equalize two very different standards of living not just for the purpose of ensuring that the child has the necessities they need, but also can adjust CS if "In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II."

          SECTION 10: UNDUE HARDSHIP - Children Come First: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines - Volume 2

          However, you have said that:



          And I can only tell you what happened to someone I know. He too had a child that did not see him. It was the child's choice over the nears to not associate with his father. There was no reason for this (aka no abuse, nothing traumatic happened, etc.) and the father always maintained that he wanted to see his son and paid his support.

          Several years later the mother tried to increase her support for tuition costs as the child would be entering university in a few months. The judge actually terminated support and said: The child is old enough to go to war, to sign a legal contract, to purchase a house and this child has decided that he does not want a relationship with his father.... the father has met his obligations towards his child and his obligations are now done.
          CanLII - 2013 ONSC 2445 (CanLII)

          2013 in Ontario.

          Comment


          • #6
            Appreciate the case law movingON1975 but not sure how it applies ..

            Niece graduated in June with a 87% honour roll status ... Mom has been informed at every step by either daughter or my brother of what she's applying for, been accepted to and what her final choice was ...

            She just doesn't want to pay child support OR post secondary .. It's one of those if I do the LA LA LA LA LA thing it will go away.

            Comment


            • #7
              EDITED TO ADD : when daughter moved full time in with dad in Dec 2011 (3 mos after settlement/agreement reached) .. I advised him to wait for a min. of 3 mos and he did .. He ended up paying offset CS until April 2012 ... In Feb 2012 he did file court papers because ex wouldn't sign off of terminating his CS obligations but she finally did consent to agree to terminate his CS once she was served ...

              My brother has now had both kids living with him full time since end of 2011 amd simply wants guideline CS .. I really don't see WJAT the issue is or why it's taken this long (

              Comment

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