Undue hardship in 50/50 custody! What do I do...

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Brianfox

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Since my son was 1 (he’s 5 year old now) my ex-wife and I share 50/50 custody of him. She quickly after 4 months of our separation had her boyfriend move in with her; they got married and have a new 8 month old child. She has always made a slightly higher salary than me however I never sought any type of financial compensation / child support from her household.

For 2 years I dated the same person, I lived as a single dad and raised my son on my own without the financial help of anyone. On the 3rd year my girlfriend and I moved in together and have recently got married. My new spouse makes a significant higher income than I do. About 7 times as much.

My ex-wife who has been off on maternity leave for the past 8 months is earning a significantly less amount of money. Whatever the max EI Ontario pays… We were sharing the cost of daycare at 50/50 therefore when she advised she was taking Mat leave I advised her that I would take over paying the full daycare amount until she returned to work. I have been doing so ever since.

She will be starting a new job in a few weeks and she has advised that her income will be approximately $10,000 less than mine. She’s decided to threaten me with claiming undue hardship due to her E.I. salary being so low and the fact that her salary will be less than previous years.

By doing this she wants my new spouse’s income to come into play as she feels we have a much higher standard of living than she and her husband do. I agree that yes we have a higher standard of living than they do and I am prepared to pay whatever I need to pay “my share / my salary”! What can I do to prevent or protect my new spouse’s income from coming into play? Together my e-wife and her husband earn approximately $75,000 per year which is quite higher than the poverty line.

What do I do? What is the likelihood of this occurring?

What I’ve read in previous posts are that Undue hardship claims are about the payor, not the recipient, of child support and Child support amounts are based on my income alone.

Keep in mind we still share 50/50 custody… Because she’s been off on Maternity leave for the past year will only her 1 year salary be taken into consideration when calculating child support? Will they look at the historical 3 years that she’s made?
 
Not an expert by any means, but I would say the three years historically would be looked at. She didn't end up on EI because she lost her job or anything like that, she CHOSE to have another child and CHOSE to take mat leave as well. It was good on you to offer to pay the full cost of daycare while she was off however you aren't obligated to and you may have set a bit of a standard when it comes to that so make sure to establish that you expect it to change once she is working again. If your agreement states you share the cost you could always let her know you'll be going back to that and should she wish to change it she can file a motion.

Once her mat leave ends she is capable of going back to work so a claim for undue hardship would be far-fetched as she isn't paying YOU support and your new spouse's income shouldn't come into play. HER new spouse's income may come into play if she intends to make that claim - keeping in mind her current financial situation is one of both hers and her new spouse's as they chose to have another child. Their choise to expand their family shouldn't affect the supprt of your child.
 
Why would her salary suddenly be lower? If she was off on mat leave the old job + salary is legally required to be offered back to her by the employer. If she CHOOSES to leave THAT job for a NEW one...again, that's a CHOICE she made and she can't claim undue hardship.

If she has chosen to leave the job she took mat leave for, and instead look for new work, you could certainly argue to have an income imputted to her based on what she is capable of making.

IF she tried for undue hardship, then HER new spouse's income would also come into play. Undue hardship takes the income of all adults over the age of 16 in BOTH households, then compares them. There has to be a significant difference in the two.

Are you currently paying CS to her at all? Are you paying offset or full table? From what you describe your ex is blowing smoke out her ass.
 
For the period she is on Mat Leave (max 1 yr), she would be receiving only EI benefits.
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Yes I know, I'm talking about the fact she's returning to work to a new job. What happened to the one she left on maternity leave? If she's on mat leave, then the company had to re offer her that position she left, or similar, and has to keep her pay rate.

If she's voluntarily dropped that job in favor of a new one for less money, that's a choice. It also would weaken any claim for undue hardship since she's capable of making more.
 
Sorry... I should have been clearer regarding her E.I./MAT leave. From what I've been told... She found out she was pregnant, didn't say anything to her employer, was laid off from that position due to economic times, started a new position in another firm, 3 weeks later announced her pregnancy and they let her go at the end of that week. So going back to an existing job is not an option. When she speaks to people in general including myself she claims to be off on MAT leave however I guess it would be purely EI/Shortage of work.

My concern with undue Hardship is that my new spouse makes 7 times more than I do... Even if they look at her income along with her spouses income it doesn't even come close to what we on the other hand make therefore our standard of living is "considered" much higher... We have the bills to back it up though so no we are not Millionaires but we have a nice life together.

This is purely about revenge and the fact that my son and I are happy in our new household is driving her nuts. She has a new baby, overwhelmed, not happy, starting a new job etc. That's what I think this is about... She's trying to make myself along with my new spouse pay for her unhappiness.
 
The court will not look kindly on her undue hardship, you have to prove that you are barely able to meet the basic necessities, plus her husbands income will be taken into consideration
 
ups and dowsn of this situatio

ups and dowsn of this situatio

First she can threaten all she wants, but she better be prepared to pay more as well!
While the supreme court ruled there is no retro child support (nice you can pay too much for years and loss) they did say if a deception was in play then you can make a claim.
Also remeber hardship is income and expenses for both households.

It is a very bad decision when you really think about it for when single parents date they can be treated like a lepard if knowing they may get stuck paying for child support for a child not even theirs.

Ultimately before you decide you have to do the complete numbers for everything both households and expenses. To my understanding she would have to claim she is paying more, but you are. Make sure you cna prove you are paying more child expenses.
 
One last question... We were trying to book a family trip to Disney... Grandma, grandpa, uncle, cousins and us of course... When I mentioned wanting to apply for a passport in order to allow us all to go she has advised that she does not like the idea because she fears that our child will get kid napped. What kinda bull is this... I can fly him to Vancouver or PEI from Toronto but we can't go to disney? Is anyone aware of any way to get an order of release or a way to legally obtain a passport without her... Our home made agreement only states that we are not able to move outside the GTA... Nothing about traveling out of Canada. Thoughts?
 
Disney Land - Take me take me!

Disney Land - Take me take me!

Well from experience if you enter the states with a child and both parents are not present U.S. customs will question it. You need an approval letter from her they cna and will call or a court order.

I had travel clause in my custody order "no unreasonable offer shall be refused" lawyer talk for if she says no back to court you go!

Let her know if she becomes real difficult it may lead to her losing custody, when the judge told my ex that she just may not get custody!her attitude changed. Women have a mistaken impression they always get custody and it is a dangerous assumption. Remind her fighting is not what you want for the kids!

Talk to a lawyer is best advice at this time.

P.s. she should have never know what your girlfreind makes for a living it is none of her business! Unless you told her - got upset didn't ya!
 
I was told by my lawyer that my ex-husband's girlfriend/common-law spouse's income does not ever come into play?? They both make the same salary (same job) in the range of $150-$170k, making their household income ($300-$340k) clearly higher than mine ($0). I'm currently a stay-at-home mom with no income other than the money I receive from my ex until we have settled on an agreement. And we are not splitting custody 50/50. Is it because you are legally married that your wife's income will be considered?
 
ForwardFromHere said:
I was told by my lawyer that my ex-husband's girlfriend/common-law spouse's income does not ever come into play?? They both make the same salary (same job) in the range of $150-$170k, making their household income ($300-$340k) clearly higher than mine ($0). I'm currently a stay-at-home mom with no income other than the money I receive from my ex until we have settled on an agreement. And we are not splitting custody 50/50. Is it because you are legally married that your wife's income will be considered?
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The spouse's income might come into play with an undue hardship claim.

This is very hard to claim and it is not just a question of income. If one parent has a lot of debt that was incurred during the marriage and it was due to supporting the family (*not just spending money on cabs and restaurants) and the cost of debt (interest and monthly repayment) puts one household's budget drasticly below the other's.

Another reason would be if one parent has very high transportation costs to have access time with the children.

Another reason would be if one parent is legally required to support another dependent. This might be other children from another marriage. I have yet to see an example where a parent was able to make this type of claim, but it is included in the FLA.

You cannot claim undue hardship just because you have a low income, or a lower income than your ex.

Without the undue hardship claim being accepted, then the ex's new spouse does not have anything to do with any support payments. My understanding is that the comparison of total family incomes is part of the finding of undue hardship, but not calculation of support; support payments would not automaticly be based on the total family income, this would be decided on a case by case basis not by formula.
 
Brianfox said:
One last question... We were trying to book a family trip to Disney... Grandma, grandpa, uncle, cousins and us of course... When I mentioned wanting to apply for a passport in order to allow us all to go she has advised that she does not like the idea because she fears that our child will get kid napped. What kinda bull is this... I can fly him to Vancouver or PEI from Toronto but we can't go to disney? Is anyone aware of any way to get an order of release or a way to legally obtain a passport without her... Our home made agreement only states that we are not able to move outside the GTA... Nothing about traveling out of Canada. Thoughts?
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Every Canadian Citizen has a right to obtain their own Passport. Your child's mother cannot reasonably withhold this right from the child.

I propose that you should get the application, fill it out, get the picture etc etc etc - and present it to her for signature.

If she refuses - go immediately to a lawyer - file a motion - have her served - get a court date - see how she likes it.

Then .... address the travel plans.

If there has been no problem with travel in the past, nor any suspicions about any travel in the past, like taking the kid and not coming home ... then denying a Disney trip is only vindictive and spiteful on her part. Children getting kidnapped at Disney ????? Anyone know when that happened last ?????? "Ridiculous" as Judge Judy would say ... :D
 
I think that kids under 12?? Don't need a passport. Birth certificate is enough....But you should have written consent from the other parent.
 
The Embassy of the United States of America - Canada

this link from the US embasy says Canadian children under the age of 16 will be able to present a birth certificate or other proof of citizenship.

So - looks like you don't need the passport. BUT - you do need a letter of permission from the non-travelling parent to enable the child to cross the border hassle-free.

I have crossed many times, always have the travel consent letter, never been asked for for. But, I'm sure the day that I don't have one, they will ask ...

So now you need to contend with getting her to agree to the trip. I've read a few times that people on here have had similar problems - do a search and see what you come up with.
 
Mess said:
Without the undue hardship claim being accepted, then the ex's new spouse does not have anything to do with any support payments. My understanding is that the comparison of total family incomes is part of the finding of undue hardship, but not calculation of support; support payments would not automaticly be based on the total family income, this would be decided on a case by case basis not by formula.
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Ahhh, I get it. It only comes into play with an undue hardship claim. Roger. Don't know if I'll ever get there. Hope I don't!


Best of luck to the OP.
 
Hi Brianfox,

1. According to the passport application, as long as you have custody (joint custody is still custody), you can apply for a passport on behalf of your son

Who May Apply for a Passport on Behalf of a Child?
One of the parents;
The custodial parent in cases of separation or divorce;
The legal guardian.
You are considered the custodial parent when your son is with you.

http://www.ppt.gc.ca/form/pdfs/pptc155.pdf

2. You will need to motion the court for a order to travel with your son.

My ex tried the same crap when we wanted to go to Mexico and our Judge would have none of it. My ex even went so far as to say she thought we would leave my son unattended on the beach...what crap.

We agreed to provide contact information, a complete itinerary and have my son call his mom during the trip, so our Judge granted our request. Said that my ex could not provide reason for him not to be allowed to go. She was pissed!

You shouldn't have a problem as long as she can't prove you are a flight risk.
 
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Additionally, when my spouse, my son and I went to Mexico, we were never asked to present the court order, even though we had one and travelling to the US for shopping has never been an issue either.

I would still get a court order so she doesn't try to claim that you took off with him. That would affect any future travel plans. :(
 
In the case of custody, separation or divorce

All legal documents that refer to custody, the mobility of, or access to the child must be provided. If a divorce has been granted, a copy of the divorce judgement or order must also be provided. Where a joint custody provision exists, either parent may apply, but both parents must sign the application.

The above information came from Passport Canada: Passports for children

It is true - in cases of joint custody - either parent may be the applicant - but it still requires the signature of BOTH parents.

I renewed my son's passport a couple of month's ago and the lady at the counter inspected my separation agreement (the custody section) very thoroughly - even though the application was signed by both parents.
 
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