Undue Hardship - Help!

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kamkatie

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Hello everyone,

I'm new to the forums and could really use some help in my current situation.
My fiance and I live together with my two children. He has three children of his own who live with his ex-wife. We make gross about 80000/year. We pay about 860/month in child support. When my fiance left he took all the family debt (about 30000) with the exception of the family home which he signed over to his ex (which she then sold to move in with her fiance).

Last week we received notice that the ex was putting his girls in ringette camp, a goalie clinic, theatre camp and his son was being place in soccer. All for the summer. The kids are currently engaged in ringette and hockey throughout the school year. We had the nerve to say we could only afford to pay for one activity/child/season. His ex blew a gasket. She said we are responsible to pay for every activity that she puts the kids in although she conceded that we have probably been paying more than our portion for the last few years (she makes twice what my fiance does). At this point she threw out every cost she has paid for daycare, medical, gas, hotel, equipment etc. The total amount owing being about $4000. She was quite considerate and said we could pay her back over a period of months. My question is what the heck do we do now? We don't even see his two eldest children anymore. She has clawed back our visitation with his son because my fiance works weekends and she says if dad's not around then neither is his son. His kids are covered under my benefits at work. At any time we would have been glad to submit claims for medical expenses. However, I don't think my insurance company is going to cover stuff that's 3 years old. As far as the daycare stuff goes, we would have contributed towards that had we known about it. Do we still have to pay for this stuff if she can't provide any receipts? What about things like tax deductions? I know she's eligible to claim daycare, she says she didn't. Is that our fault? Do we have to pay more because she couldn't be bothered to tax advantage of her tax breaks? We would have been more then happy to claim it if she didn't! She's know stating that she's going to take us to court for all this past money owed. There's no way we can afford to pay it back. If it comes to it we may have to try and claim undue hardship. Not too concerned about the differences in standard of living as she makes what we do combined and her new hubby is some kind of lawyer. Has any one else gone through this? Or has any suggestions? We can't afford a lawyer. Thanks in advance.
 
The first thing I would be trying to do is to let cooler heads prevail and get sitting down together (rule #1, no one is allowed to blow any gaskets) with the ex to come up a compromise you can all live with.

To have to go to court because maybe $1,000 in camp money is in dispute would be a real case of cutting off your nose to spite your face.

Denial of access by Mom because she refuses to make some accomodation for Dad's work schedule is reprehensible. Blowing gaskets and trotting out old daycare, medical and whatever other tired old claims just incites conflict.

Your challenge will to be manage unreasonable behaviour by not engaging in it, and still get something you want, like the ability to see his kids!!!

Check with the insurance company to see how far back you can go, and get the claim submitted. Offer to pay your share for these camps out of those proceeds, and make an arrangement for Dad to see his kids, even a little. Craft an ongoing arrangement to submit further medical claims to insurance in order to fund further activities.

Section 7 expenses are shared pro-rata to the parents incomes. I trust that Mom doesn't feel that Dad is entirely responsible for daycare, medical and camps. From what you say about their incomes, Mom is responsible for two thirds of these costs after considering the tax relief to which she is entitled.
 
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Dear dadtotheend,

Here is a direct quote from one of her most recent emails directed to my fiance:

"You seem to be under the impression that you have some form of leeway, or subjective determination, when it comes to your financial obligations under the terms of the agreement. You do not. It's not a matter of what you are "willing" to pay for - it is a matter of what you are required to pay for.

So, to be perfectly clear, you are required to pay your share of the childrens' "extraordinary" expenses. This includes, but is not limited to, sports enrollments. In addition to the support payments as required under the terms of the Child Support Guidelines, you were also to pay me for your pro-rata share of [son]'s daycare costs. I had previously tried not to be too concerned with enforcement of the Agreement but as you've decided to rely on it, so shall I. I only ever requested that you pay your monthly child support payments and half of their sports enrollment fees.

The figures below are based on my assumption that I make twice as much money as you do. This means your share of all expenses covered under the agreement is roughly 1/3.

[son]'s monthly daycare costs for the last two years (I won't bother going back to the time prior to that which you also did not help me pay for, as a courtesy) was approximately $420.00 x 10 months = $4,200.00 per annum. Two years equals $8,400.00. Your 1/3 share of these costs is therefore $2,800.00.

While you have paid your share of the girls' ringette registrations and [sons]'s hockey, their additional training (goalie coaching, WADA fitness, power skating) has, to date, been all paid by me. Those costs are approximately $2,000.00, leaving your share at about $670.00.

The girls' tournament costs for the last three years has been in the area of $3,000.00, with your share being $1,000.00, give or take.

I will credit you $600.00, which is your overpayment of the girls' registration costs for the last three years, as you probably should have paid more along the lines of 1/3 instead of 1/2 of these costs.

I have yet to calculate the various educational expenses, including annual student fees, uniform costs, book fees and class trips.

Notwithstanding that you will be expected to pay your 1/3 share for ALL of the kids' expenses which will include all ringette and hockey costs as well as any camps they might attend or other classes or programs they will to enroll in (for example, [daughter] will likely be joining the Original Kids Theater this year), please be clear that these costs ARE covered in our agreement, so it appears that you have been misinformed by your legal counsel. Therefore, as per the agreement, you currently owe me somewhere in the neighbourhood of $3,870.00. If you need to pay this over a period of a few months, that will be fine, but as you are required to do so by the agreement, and you've chosen to rely on its strict terms as to what you think your obligations are, I expect that you will abide by these terms whether you are "prepared" to or not.

I would think that you would want to help pay for the kids' programs just in the interests of being a responsible father, but since that is apparently not enough to sway you, we'll rely on the agreement as you seem to want to do to ensure you pay your required contribution."

Now, to be clear the only thing in the agreement about extra expenses is daycare and ringette. No specifics on what exactly ringette would cover. When my fiance and his ex were still married the girls were playing once a week. Since the split mom has continually pushed them harder and harder. Both girls now play in A/AA leagues.

We have asked for mediation. She stated she didn't see any point in arguing with us further and she would have her lawyer contact our lawyer. Are we out of line here?
 
Mom is right, he owes $4,000. Doesn't matter whether the exrtra costs were stipulated in the agreeement. It's not reasonable for the agreeement to try and identify the children's interests years in advance. Unfortunately, if Mom has custody then she has the right to decide what activities the kids are in. She wouldn't appear to being frivolous about this, she is paying 2/3 after all.

Offer to pay it in return for the access she has denied him.
 
Maybe I've misunderstood how extraordinary expenses work. According to the guidelines they must be above what can be reasonably covered by the the person receiving support (whose income for this determination also includes what they receive in support). If they exceed what can be reasonably covered it must then be determined that these expenses are in the best interest of the child and are themselves reasonable. We have no issue with contributing towards the kids extracurricular activities. The problem is she keeps putting the kids in more and more things and we simply can't keep up with the costs. I don't think we're being unreasonable in only being willing to contribute to one activity per kid per season. Daycare we would have paid at any point but were never asked (until now) and have never been provided with receipts. All of this started because she sent us an email stating what the kids were going to be in this summer and what we owed. We replied that we would pay half of the costs associated with one activity each but that we couldn't afford more. That's when we got hammered with all of the other stuff.
 
I'll include a quick breakdown of my fiance's financial situations.
He works two jobs, net take home pay is about $2400.

So per month...
Income:
Work - $2400
Expenses:
Child Support - $860
Matrimonial Debt - $500
Kids activities (according to
what mom thinks we should
pay) - $100
Life Ins. - $18

So before my fiance has paid for his shelter, food and clothing he's already down to $930/month to live on. Does anyone find it reasonable for a grown man to then provide for himself as well as keep any kind of stable and decent home for his children's visits on about $210/week? Just for reference, if he were to keep a two bedroom apt where we live it would be at minimum about $700/month. That leaves him with $240 for utilities, food, gas etc.
 
If Mom has custody, she gets to decide what extracirricular activities the kids are in, and Dad pays 1/3 based on their respective incomes. Unfortunately, the rules don't consider his expenses, so you don't get to make the argument you propose above.

What's unreasonable, in fact disgusting, is that Mom isn't willing to bend the schedule to allow Dad to see his kids.
 
Yea the custody thing is awful. Her argument was that his son should be spending time with family members, not a babysitter. Ouch! I wish I'd known I was babysitting, I could've been paid for the last few years!

So she can put the kids in anything she wants no matter the cost and we have to pay? I got this quote off an Ontario Lawyers site "Courts have noted that it is not open to a parent to select any recreational activity, regardless of the cost, and then demand that the other parent contribute."
Pavey, Law, Wannop & Witteveen LLP - Divorce and Family Law
I seriously hope that's the case. She has the means thanks to her new marriage and higher paying job to put the kids in some seriously expensive activities. I keep waiting for the bill for private schooling to come up. No offense but are you sure about this? (Fingers crossed and no insult intended that you're wrong about this).
 
Read the very link you provide that says, amongst other things that the parents are free to agree on any method they choose to divide section 7 expenses. If they can't agree then...

"In the event that a court is called on to decide the amount of child support, the court has discretion to consider the necessity and reasonableness of these expenses in light of the best interests of the child and means of the parents" I added the bolding.

If Dad can successfully argue that he doesn't have the means to pay extraordinary expenses (like private school tuition) then she cannot compel him to pay. Check the CanLii site and do a search on private school and section 7 expenses, where you can research some case law that I bet alleviates your fear of private school. Simply put, Dad can't afford it, and the kids don't need it as there is a public school system that meets their needs.

But if the expenses are reasonable (like camps) then the custodial parent has the discretion to enrol the child and Dad will participate in the costs. Again, Mom is paying 2/3 here, so she is most likely enrolling the children because it in the their best interest. Just imagine if the incomes were reversed, like in most cases where the custodial parent makes less. Then you'd be really upset because you would be paying for the lion's share of Mom's decisions as to what the kids do.
 
Ok so theoretically a judge could decide that we need to contribute to all the activities the kids are involved in. Did you have a chance to look at the financial information I provided? Do we have a shot at undue financial hardship should it come to that? Keeping in mind that ex and her new hubby make upwards of $200000.
 
kamkatie said:
Ok so theoretically a judge could decide that we need to contribute to all the activities the kids are involved in. Did you have a chance to look at the financial information I provided? Do we have a shot at undue financial hardship should it come to that? Keeping in mind that ex and her new hubby make upwards of $200000.
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Not "theoretically", it is what it is.

I'm not an expert. I can't advise you on undue hardship.
 
I don't agree

I don't agree

I am pretty sure that she can't just enroll them in whatever and then demand that you pay your share. It is based on the reasonablness of the activity and the means of BOTH parents. Section 7's are not "a right". They are to be agreed to by both parents BEFORE the expense is incurred. The daycare expenses should have been discussed and even if she didn't appy for the tax relief etc. you would only be responsible for paying the amount after her tax breaks. NOt your fault she didn't apply. But I seriously doubt a you'll be made to pay at all. I know that when an NCP accidently pays too much CS, it cannot usually be recovered and is treated as a "gift". I think these expenses are too far in the past would be treated the same way. I am not sure about the hardship claim, but I wouldn't think old section 7's can be demanded paid by you in this manner, after the fact with no prior discussion.
 
What a relief! Don't get me wrong, I think extracurricular activities are great for kids (in moderation). As far as the daycare expenses go, do we have the right to ask for proof of payment? I've got absolutely no qualms about paying for daycare. It's in their agreement and it is our responsibility to contribute. My concern is, at this point I just don't trust her. I wouldn't put it past her to buy a receipt booklet and write out a bunch just to spite us. Any suggestions?
 
Yes, you have the right to request copies of the receipts.
Here's our position, we paid directly to the ex, and she advised that she paid the day care.
Low and behold she didn't, the day care eventually contacted us for non-payment of the previous 4 months.
From that point on we insisted on either getting copies of receipts of payment or paying the day care provider directly.
 
Thanks for the reply FL. I'm sorry to hear about your daycare woes. Rest assured, we'll ask to see receipts. However, how far back are we expected to go in payment? None of the the kids are in daycare anymore. The daycare expenses she's asking for occurred in 2006 and 2007. As well, any suggestions on whether we have a hope for an undue hardship claim? I threw in my fiance's financial information in the thread somewhere (I think its post 5 or 6). Thanks again for replying.
 
kamkatie said:
Thanks for the reply FL. I'm sorry to hear about your daycare woes. Rest assured, we'll ask to see receipts. However, how far back are we expected to go in payment? None of the the kids are in daycare anymore. The daycare expenses she's asking for occurred in 2006 and 2007.
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I am not familiar with requests fro reimbursement of expenses incurred more then 2yrs prior. I would question if a court would allow the request at all.
However, if the request was initiated and this is just a question of time constraints on the part of the courts it may be allowed.
But seeing as you are having some financial troubles, I would counter the request with your financial statement and advise that you are unable, at this time, to accommodate the additional expense. Clearly explain that the payments have already been paid, if the payer had a greater standard of living and did not incur similar financial hardship, but is just now deciding to seek reimbursement, you make be able to win a request to have the claim disregarded.
I would go one to state that you would however, be willing to pay your proportionate share of any future extra ordinary expenses relative to your income.


kamkatie said:
As well, any suggestions on whether we have a hope for an undue hardship claim? I threw in my fiance's financial information in the thread somewhere (I think its post 5 or 6). Thanks again for replying.
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In any undue hardship claim, you must remember that you must show that your household standard of living is below the other party’s household standard.
These are very difficult claims to prove and win. The courts make it difficult for a reason, so that payers will only claim in real undue hardship cases.

You have to have solid proof that at your income any support payments or costs associated to access indeed cause "undue" financial hardship.
Undue being the operative word.
 
The standard of living is the least of my concerns. She's already stated that she makes twice as much as my fiance does. Her new husband is a business lawyer in a fairly sucessful practice. I just graduated from college and have had no income for the last 3 years while I finished schooling. I've been working since May and make approximately what my fiance does. In which case our combined incomes would equal what the ex's is.

I completely agree that the undue is the more difficult part to prove. Now when my fiance left, he left her the house. Granted, it still had a mortgage but he did not ask for any equity in the home. As well, he took all the family debt. Works out to about $30000. So she was left with no debt aside from the mortgage (she sold the house and moved into her husband's).

So take net home pay for my fiance is about $2400.
He pays about $860 in CS.
His matrimonial debt would work out to ($30000 X 9.5% interest rate over 5 years) $630.
So after CS and debt he has $910 left over per month to provide shelter, food etc.
In order to see his kids he requires some form of safe environment for them as well as a vehicle and food. If he pays half of my mortage (which is cheap in comparison to what he could be paying if he rented an apt) he's down to about $700. Vehicle costs about $350 to maintain/month between loan, gas and insurance. So he's down to $350 for the rest of the month in which he still needs to pay food and utilities. Not to mention the section 7 expenses. If I work it out in extreme detail he's actually negative $20/month. If he didn't live with me he'd be in the hole $500/month.
 
An application must include a full and frank financial disclosure with documentation to back it up.
One might argue that the CS and access costs are not Undue, meaning that they are not unreasonable given the circumstances.
What is normal for one, however, may be undue for another.

Here is the FL quote on undue hardship. Remember that what is seen as undue or unreasonable to you may not be to the courts. So the onus would be ont he claiming party to "clearly" & unequivocally show that they are.

"On either spouse’s application, a court may award an amount of child support that is different ... if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
"Circumstances that may cause a spouse or child to suffer undue hardship include:
• the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
• the spouse has unusually high expenses in relation to exercising access to a child;
• the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
• the spouse has a legal duty to support a child, other than a child of the marriage, who is under the age of majority, or the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; (or)
• the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
"Despite a determination of undue hardship, ... 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 (otherwise) determining the amount of child support ..., have a higher standard of living than the household of the other spouse."
 
Thanks for the information. It would be nice if the law was a little more specific on what it considered "undue". Sigh. At this point we're just barely keeping our heads above water. The problem, this doesn't allow us to ever plan ahead. We can't pay antying off, we can usually only just pay the interest. We are incapable of putting money away for anything. Not our retirements, not our kids' education. Is it undue or just unreasonable? I don't know what a court would decide.
 
The experience we had with extracurricular activities was that when the divorce happened with my husband and his ex their son was (and had been for 2 years) enrolled in hockey which he loved, so the judge said that they would each be responsible for half the cost, registration, equipment etc. SHE did not like that and said that it was his fathers fault he loved playing therefore he should have to pay the full cost, that didnt work and they ended up splitting it, although we did all the driving because she did not have a car.
I wonder why the courts dont look at it this way, IF you had stayed together would you have been able to financially send your child to lessons, private school etc, if the answer is no then how can they expect it after a divorce.
 
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