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Financial Issues This forum is for discussing any of the financial issues involved in your divorce.

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  #1  
Old 05-15-2019, 07:57 AM
Lolita123 Lolita123 is offline
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Question Undue Hardship

Good morning,


I was wondering if anyone here had been or has a case where Undue Hardship has been succesfull in the fact that the payer has a previous obligation under a court order to pay CS for a dependant child.


My husband and I have been going through almost 2 years of dealing with the ex... they had an original separation agreement done with a mediator that was signed and all.. When it was time to file for divorce, the ex now scrapped everything on the agreement. My husband gave her everything that she wanted to try and avoid court but the only element left is CS. He has a daughter from a previous relationship who is 16 and pays CS for. His lawyer recommanded that the CS be lowered for the time that he is still paying for the first dependant and after that to pay full table.


Ex wants full table Full table is $1350 for 2 kids and the offer was $1000...


She now has a boyfriend who has been living with her for almost a year. Him and I would say make close to the same amount (I am assuming since we both work for the Gov. and based on his job title).


I also have 2 children myself 50/50 that I don't get or pay support for since ex and I make pretty much the same amount.


So.. any guidance? I know that Undue Hardship is a hard thing to prove but in this case he does meet one of the criteria to be considered which is support another child from previous relationship I would just love to read a case that was succesfull based on that.
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  #2  
Old 05-15-2019, 08:22 AM
rockscan rockscan is offline
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Your kids have no bearing on this. They are your responsibility.

Her living situation means nothing as well.

He will have to pay full table for the kids.

His kids are entitled to child support. He had three children with two different women. He should have prepared himself for having to pay support.

You may need to check canlii for cases but in my extensive reading on cs I have not seen anyone be successful in reducing cs because they had three households to support.
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  #3  
Old 05-15-2019, 08:39 AM
Lolita123 Lolita123 is offline
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Quote:
Originally Posted by rockscan View Post
Your kids have no bearing on this. They are your responsibility.

Her living situation means nothing as well.

He will have to pay full table for the kids.

His kids are entitled to child support. He had three children with two different women. He should have prepared himself for having to pay support.

You may need to check canlii for cases but in my extensive reading on cs I have not seen anyone be successful in reducing cs because they had three households to support.




The law does state that you can claim unduehardship and a previous child support obligation is one of them: (quoted from Justice Website)


Circumstances that may cause a spouse or child to suffer undue hardship include the following:
C. The spouse has a legal duty under a judgment, order or written separation agreement to support any person;


This is the case for my spouse


then it goes on to say that:
Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of the sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.


Basically, at that point HER income and her partner's income would be compared to my spouse income and MY income to determine the standard of living of both household


my stating that I have kids was more in the fact that I am not sure if how many kids in a household affect the results of standard of living


I know that people have been unsuccesfull in claiming unduehardship when they have a first obligation and then go on to have other kids with the new spouse and ask to reduce the CS of the first child it's the concept of first family should not suffer But in this case the law says that HE DOES have a claim to ask a Reduction until the first CS is over.


And trust me he does not contribute anything directly to my children (even if he would want to he barely has nothing left after all his expenses paid) so he does not support 3 households he supports 2 and support himself
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Old 05-15-2019, 10:04 AM
rockscan rockscan is offline
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Again, its a crap shoot. I have seen cases where the judge denied the undue hardship and blasted the father for claiming it. I have also read many statements on here and on blogs that the undue hardship is a giant climb. Plus there are those cases where ex has moved in with a millionaire when dad is living in his car and still paying full table support.

I have not seen any posts on this forum where a payor was successful. You may need to do a very deep dive on canlii and possibly spend some time at the library going through case law.

Thats not to say he shouldnt try but if he does, he may want to do it the self rep route. Every dollar spent will be scrutinized.
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Old 05-15-2019, 10:09 AM
StillPaying StillPaying is offline
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I don't have case law, but it sounds like you're doing the right thing. Compare both homes' standard of living and if you're lower, cs may be lowered as well. It's similar with stepkids getting lower than table amounts. Just be prepared for the boyfriend to move out and claim he doesn't live there.
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Old 05-15-2019, 11:17 AM
Selfrepmom Selfrepmom is offline
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I dont know..... I think you are on a slippery slope here.

My situation is somewhat similar to yours- My current partner (together 4 years) has two children from two previous relationships and I have one from my previous relationship. No kids together, we are done lol.

I wasnt receiving CS for two years and am currently fighting for proper CS from ex.
Current partner is paying full table for both of his kids.

My big thing that I made clear to him when we first got together is that our kids are all treated equally and are all given the same opportunities, to the best of our abilities. I couldnt imagine in my wildest dreams going to the mother of his youngest daughter and telling her that she is going to get less money than his other kid.
Is it hard paying out that much money every month? Yup
Do we have to make sacrifices? Oh hell yup- we rent a small house, drive one vehicle, buy second hand clothes for ourselves, and have never been on vacation in our 4 years together.
Do I sometimes wish we had that extra money to build a better life together? Sure. But I knew what I was getting into when I got with him. I knew there would be sacrifice- and not just the financial kind.

My advice? Drop it. Getting caught up in how much money your partner has to pay his ex(es) is a quick way to run your relationship off the tracks. Unless you guys are loosing your home over this, then it might be worth pursuing. But it sounds like you are $350 a month apart between your offer and full table. Save on the lawyer fees, make a few sacrifices, and revel in the fact that your partners ex will never be able to tell his kid that he financially favoured their sibling over them
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Old 05-15-2019, 01:25 PM
Berner_Faith Berner_Faith is offline
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Do you have cable/satellite? Internet? Cell phones? Hobbies? Basically if you have money to spend on things that are not necessities your claim will most likely be denied. His children deserve to be supported equally and this will be a very hard case to win unfortunately


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Old 05-15-2019, 01:47 PM
Selfrepmom Selfrepmom is offline
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Quote:
Originally Posted by Berner_Faith View Post
Do you have cable/satellite? Internet? Cell phones? Hobbies? Basically if you have money to spend on things that are not necessities your claim will most likely be denied. His children deserve to be supported equally and this will be a very hard case to win unfortunately


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Exactly.

Show me the household budget of someone whose income dictates that their BASE CS payments for 2 kids is $1350 and I will 10000% be able to show you where you can make some cut backs on lifestyle so that said person is able to maintain this obligation.

Judge will throw this out laughing- and will order costs to mom.
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Old 05-15-2019, 01:57 PM
Selfrepmom Selfrepmom is offline
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Quote:
Originally Posted by Lolita123 View Post


And trust me he does not contribute anything directly to my children (even if he would want to he barely has nothing left after all his expenses paid) so he does not support 3 households he supports 2 and support himself
Does he rent a separate basement apartment from you in the home you live in? Probably not.

You share a home (and presumably a bedroom). If he is contributing $1 to the rent/mortgage/utilities/internet/cable/property taxes/insurance/groceries/gas in the car, guess what? He supports your household and your children. Because if he was not living with you, any single dollar that he contributes to the bills is money that you would have to otherwise come up with on your own.
You have a government job. He has an income that dictates $1350/month child support. I think you both will be just fine.
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Old 05-15-2019, 02:47 PM
StillPaying StillPaying is offline
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I still think the OP has a good chance at this.

When cs is ordered less than guideline amounts due to access travel costs (undue hardship), it doesn't matter if they have cable and a cell phone. Other cs obligation orders is listed as a factor, similar to access travel costs, so it's more of a given... although they would still have to show high cs/s7 costs to 1st child. Given the amount of cs, it looks like he makes good income and pays a lot. The fact that OP works and the undue hardship claim isn't to support someone staying home helps too. Also the 1st child cs is almost over, so it'll be easier to get a temporary relief and then go back to table amounts, supporting 2 homes instead of 3.

Then it'll come to the standard of living at both homes. So it's not that you can't have luxury items, you just need less of them and less overall at the end of the month.
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