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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 02-22-2021, 05:50 PM
Meenah Meenah is offline
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Unhappy Undue Hardship making $81,000K

Hey there, here is some background info on my case.


My ex and I have a child (12 yo). He married and had 2 more children (6yo + 3yo), but recently divorced. He pays no spousal support.

He has been paying the guideline child support amount for our 12yo since 2018 (based on his 2017 income of $51,000).
For the last 3 years he has been paying support based on his $51,000 income.

However, he made $60,000 in 2018, $73,000 in 2019, and it looks like $81,000 in 2020. Clearly he will owe arrears.

He is trying to make an undue hardship claim under section 10 (2):
"Circumstances that may cause a spouse or child to suffer undue h:ardship include the following: (c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person"

Get this... He only pays $750 total for his 2 younger children (as he bullied his ex into agreeing to that number - when it really should be closer to $1200 with his current income. He claims to pay "significant daycare costs", but on his sworn financial statement he wrote that he pays $100/month for babysitting costs -- which I am certain is a lie - he only saw those kids 10 times in 2020.

He only pays $470 for our child, which should be closer to $750. He paid NO child support for our child until he was 6yo. He pays NO section 7 expenses and never has. Including day care, orthodontics, and hockey fees.

At the case conference, the judge had to get out his rule book because he apparantly hasn't seen an undue hardship claim in ages. The judge agreed that he meets the definition of undue hardship since he does have other children to pay for. Now we have to do a comparison of standards of living. So, I quickly whipped up the calculations after the conference to find out suprisingly his standard of living is lower than mine (4.2 versus 4.6). He is already paying less than the guideline amount for 2 of his 3 kids, how on earth could it be this easy to make a hardship claim? If so, everyone would do it! I make a little less than him (around $75,000 mark) with similar work expenses as him, ie, union dues, etc. Difference is that I pay all the section 7 expenses independently.


Even if he had all 3 kids with the same mother, he should be paying at least $1600/month with that income!! Am I missing something here? Of course he has a slightly low standard of living! He chose to have 2 more kids! I have never married. Have full custody of our 12yo. None of the other children have significant medical, daycare, or access costs.

Can someone please explain how this might go down? I am stressing out over this!!
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  #2  
Old 02-22-2021, 09:50 PM
rockscan rockscan is offline
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Technically his obligation is to his first kid first. But there have been cases where a reduced amount of support is paid due to hardship. Remember he doesnt get government benefits or subsidies and his gross income of 80 grand is more like 60 or less after taxes. Consider all his monthly living expenses and then add child support on top.

If you are worried about what could happen, go to canlii.org and search for child support and undue hardship. That should show a few cases and their outcomes. Sadly you cant get blood from a stone.


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  #3  
Old 02-23-2021, 12:31 AM
Meenah Meenah is offline
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Quote:
Originally Posted by rockscan View Post
Remember he doesn�t get government benefits or subsidies and his gross income of 80 grand is more like 60 or less after taxes. Consider all his monthly living expenses and then add child support on top.
Correct, according to the standards of living test, his adjusted annual income after taxes/deductions/ INCLUDING guideline amt child support for our child is approx 40,000. The low income measure for a ONE ADULT household is $10,382. Therefore his is still bringing in a significant income.

Quote:
Originally Posted by rockscan View Post
If you are worried about what could happen, go to canlii.org and search for child support and undue hardship. That should show a few cases and their outcomes. Sadly you can�t get blood from a stone.
I have actually been reading though some and have found some peace in a few things.

1) He must meet the standard for UNDUE hardship before the SOL test even applies. In Barnes v. Thompson, supra, 2020 (Ont. Ct.), para. 37., Since the father did not meet the first part of the undue hardship test, it is unnecessary for the court to analyze the next part of the test — whether the father's household standard of living is lower than the mother's household standard of living.

Also see, Hanmore v. Hanmore, 2000 ABCA 57 (CanLII); Tahir v. Khan, 2019 ONCJ 663; Matthews v. Matthews, 2001 CanLII 28118 (ON SC); Barrie v. Barrie, [1998] A.J. No. 460 (Q.B.); Swift v. Swift (5 February 1998), 1998 CanLII 18642 (ON SC), [1998] O.J. No. 501, Kingston Court File No. 574/97 (Ont. H.C. (Gen. Div.)); Atkinson v. Johnson, 2021 ONCJ 15 (CanLII); Costa v. Perkins, 2011 ONSC 5536



2) The respondent has the onus of providing adequate supporting documentation to prove his undue hardship claim. Van Gool v. Van Gool, supra, 1998 (B.C.C.A.); Marrone v Marrone, supra, 2007 (Ont. Sup. Ct.).; Dormer v Tucker, supra, 2014 (Ont. Ct.), para. 52.; Reid v. Fortune, supra, 2018 (Ont. Ct.), para. 21.; Barnes v. Thompson, supra, 2020 (Ont. Ct.), para. 29.; Barrie v. Barrie, [1998] A.J. No. 460 (Q.B.),;Hanmore v. Hanmore, 2000 ABCA 57 (CanLII); Reid v. Nelson (2002), 2002 CanLII 78097 (ON CJ), 30 R.F.L. (5th) 153 (Ont. C.J.). Clear and cogent evidence as to alleged debts should also be provided

3.) "Second families and attendant support obligations are not uncommon and the mere fact a payor’s household standard of living is lower than that of the other parent, due in part to the payor’s legal duty to another child, does not automatically create circumstances of undue hardship within the meaning of the Child Support Guidelines." Nagy v Tittmore, 1997 CanLii 11231 (Sask. Q.B.); Min v Soe, [2008] O.J. 927, 2008 CarswellOnt 1546 (Ont. Sup. Ct.).;
Hanmore v. Hanmore, 2000 ABCA 57 (CanLII); Swift v. Swift (5 February 1998), 1998 CanLII 18642 (ON SC), [1998] O.J. No. 501, Kingston Court File No. 574/97 (Ont. H.C. (Gen. Div.)),


Also, in Jackson v. Holloway, 1997 CanLII 11110 (SK QB), [1997] SJ. No 691; ..A separated spouse with a child support obligation enters into a new family unit knowing he or she has an obligation and is expected to organize his or her affairs with due regard to that obligation. A general or generic reference to the overall expense of a new household will not give rise to a claim of undue hardship. To permit such a claim would in many instances mean that if the claimant could establish a lower standard of living then a claim to undue hardship must succeed. This is not the test.

Messier v. Baines, 1997 CanLII 11210 (SK QB), [1997] S.J. No. 627 (U.F.C.)
"... the mere fact that an applicant’s household standard of living is lower than that of the other spouse, due in part to the applicant’s legal duty to another child, does not automatically create circumstances of undue hardship."

In Van Gool v. Van Gool, supra, 1998 (B.C.C.A.); The onus is on the party applying under s. 10 to establish undue hardship; it will not be presumed simply because the applicant has the legal responsibility for another child or children and/or because the standard of living of the applicant’s household is lower than that of the other spouse. The applicant must lead cogent evidence to establish why the table amount would cause undue hardship.



4.) I am under the impression that undue hardship claims are more useful for low income earners. Sampson v. Sampson, [1998] A.J. No. 1214 (Q.B.),

In Van Gool v. Van Gool, 1998 CanLII 5650: Undue hardship will not be presumed, except in those situations in which the payor is at the lowest income level for the payment of any child support, which is approximately $7,000 per year.
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Old 02-23-2021, 02:58 PM
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Unless he is disabled (significantly) and has NO income an undue hardship claim will fail. Clearly the other party is unrepresented (or self represented).
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Old 02-23-2021, 04:44 PM
arbortrail22 arbortrail22 is offline
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If you are making 75,000 and he is making 81,000 - is it really worth it? All the anxiety, cost, arguments, etc. Its possible a better path is to focus on positive things.....
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Old 02-23-2021, 05:19 PM
Meenah Meenah is offline
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Quote:
Originally Posted by Tayken View Post
Unless he is disabled (significantly) and has NO income an undue hardship claim will fail. Clearly the other party is unrepresented (or self represented).
He is actually represented by a lawyer that seems to have no idea what is going on. I am unfortunately self-represented but have been paying for a lawyer under a limited-scope retainer.

I think that is why the judge at the case conference acted like this was a one step process based on SOL tests. He hasn't touched one of these cases in forever and probably assumed the oppositions lawyer knew what he was talking about.

Thank goodness it got pushed to a settlement conference. Hopefully the next judge will be more familiar. If not, I have prepared pages and pages of case law to help inform the judge of previous decisions made.


If the father in my opinion suffering hardship? Yes, probably. Is that hardship undue? No. After CS and deductions, he still has an adjusted household income of $40,000. Where that money goes is a matter of the father's own lifestyle choices. Lifestyle does not count as a defense under section 10 (2) for undue hardship.

Fingers crossed.
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Old 02-23-2021, 05:31 PM
Meenah Meenah is offline
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Originally Posted by arbortrail22 View Post
If you are making 75,000 and he is making 81,000 - is it really worth it? All the anxiety, cost, arguments, etc. Its possible a better path is to focus on positive things.....
He is the one claiming undue hardship. I was just looking to have the child support amount adjusted to the guidelines to reflect his $30,000 increase in income. Currently he is paying the amount from 3 years ago ( based on $51,000).

He gets legal support through his work so it costs him nothing, and could only benefit him, to make an undue hardship claim.

It is costing me money, time, and stress, but he has a responsibility to his child. I put myself through university to make a decent income (this is my first year earning 75,000. Previous to this year, my income has been nothing - living and supporting my son off of student loans which I have to pay back.) Despite that, I have paid for 100% of section 7 expenses and he never contributed a penny.

In his eyes, I make okay money now so he shouldn't have to pay. That isn't how the law works. And yes, I could forgive it and just raise my child on my own knowing that I solely contributed to his upbringing, but that isn't just.
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Old 02-23-2021, 06:44 PM
rockscan rockscan is offline
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He could also quit his job or work for cash and you get nothing. Neither situation is right. Some money is better than no money. There was a poster on here who had an ex with an attitude of too bad this was your choice and he killed himself leaving his kids fatherless.

Sometimes perspective is important. He has three children by two different mothers sure and he has a lot of child support to pay to you both. He could have worked out an agreement to pay you both reasonable amounts while still being able to live but he chose not to. He may be making poor decisions but also remember that this is your childs father. Your child will grow up seeing this. Are you angry that he didnt tell you his income went up or angry that he made stupid decisions that are taking away from you? He makes 80 grand. Its not like he makes 500 and refuses to pay anything. There are a lot of parents out there fighting someone who makes six figures and refuses to pay anything. Your ex isnt a millionaire. Sure he made bad choices and thats why he is your ex but he is also your childs dad.

My family lived on social assistance as my father didnt pay child support. My mothers decisions contributed to that situation. I grew up with two semi-shitty parents and carried a lot of animosity for both of them. Is that what you want your child to know?

These are all rhetorical questions. Simply pointing out other sides. Its one thing to fight for what you are entitled to and another to destroy a person along the way.
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Old 02-24-2021, 09:25 AM
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Quote:
Originally Posted by Meenah View Post
And yes, I could forgive it and just raise my child on my own knowing that I solely contributed to his upbringing, but that isn't just.
So you are going through all this to prove a point to who exactly? Your child? Society at large? Your ex?
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Old 02-24-2021, 10:35 AM
Brampton33 Brampton33 is offline
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Some people don't want to see their exes prosper, or even live a decent quality of life post-divorce, whereby they feel a sense of satisfaction knowing that their ex is just scraping by after the fallout.

Remember, your children will spend time with your ex. Don't you want your ex to be able to afford proper groceries to feed your children nutritious meals? Have quality furniture in their bedrooms? Have toys or things to do? Maybe enjoy a vacation or day trip?

My ex gets an annoyed (almost disgusted) look on her face when our kids come back with souvenirs from our trip to the zoo or amusement park. It is sad really.
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