Undue Hardship? Please help!

L

lemontree

New member
Hello, Looking for an opinion on if I qualify for Undue Hardship.

Currently paying table amount for child on shared custody basis (50/50)

Since this amount had been established, I have had two children. My spouse is currently on maternity leave and receives only the basis EI amount, therefore significantly increasing my financial responsibility.

My ex has been living in common law with a wealthy partner for 4 years now and has been attending school (conveniently attended school when we split therefore effecting my support amounts), they have attended lavish trips and recently purchased a half million dollar home. In other words, she does not need my money, and there are no costs associated to daycare or regular expenses for our daughter. The standard of living at her household is comparable or even better than mine.
I'm not suggesting I pay her nothing as I make twice her assigned salary, however I do feel I should have my amounts reduced for the fact that I have a duty to support our daughter in our household along with my other children, and money is VERY tight considering my wife is on un employment.
Please, any help would be appreciated!
 
lemontree said:
Hello, Looking for an opinion on if I qualify for Undue Hardship.

Currently paying table amount for child on shared custody basis (50/50)

Since this amount had been established, I have had two children. My spouse is currently on maternity leave and receives only the basis EI amount, therefore significantly increasing my financial responsibility.

My ex has been living in common law with a wealthy partner for 4 years now and has been attending school (conveniently attended school when we split therefore effecting my support amounts), they have attended lavish trips and recently purchased a half million dollar home. In other words, she does not need my money, and there are no costs associated to daycare or regular expenses for our daughter. The standard of living at her household is comparable or even better than mine.
I'm not suggesting I pay her nothing as I make twice her assigned salary, however I do feel I should have my amounts reduced for the fact that I have a duty to support our daughter in our household along with my other children, and money is VERY tight considering my wife is on un employment.
Please, any help would be appreciated!
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Are you paying your FULL table amount with 50/50

Or are you paying set-off?
 
I don't believe you having another child would qualify for undue hardship.

You should search CANLII for applicable case law.

When applying for undue hardship you are opening up your spouses income to the matter as your ex will be able to take into account "Household" income not just yours.
 
Personally I don't think you will get far with this claim. You choosing to have more children is your fault, not the ex's or your daughters. When you choose to have more children you need to understand the financial impact it may have on your family. If you choose to have a relationship with someone who is not as wealthy as your ex's partner that is your issue. You have a responsibility to support your daughter and she shouldn't go with less of your support because you have a new family.

If you have not already done so, you should be looking at imputing an income on your ex. However, if she is attending school to better her life, and in turn your daughters life, good luck with getting more than min wage imputed on her.

Think of it this way... lets say you and your ex made the same amount and neither of you paid CS to the other, how would you feel if she decided to take mat/parental leave and have you pay CS because she made a decision to have a child that had nothing to do with you? I am sure you would think that is equally as unfair you pay MORE CS because of her decision, it goes the same way for you. You shouldn't get a decrease is CS because you decided to have more kids and can't afford to support every one.

And before you get upset, I know it isn't always easy... my partner and I have waited almost 5 years before we even attempted to start planning another child because we knew our financial responsibility for his first children and that is how it should go.
 
Does your ex have a job? If no, has an income been imputed on them?

Undue hardship would be a very hard sell. As mentioned above, having more kids is a choice and you knew your financial obligations when you made that choice. But if the ex has only minimal income, and has marketable skills which would provide for a greater income (and you can prove it), you could argue for an income to be imputed to them increasing their portion of off-set C/S, thus reducing yours.

The ex doesn't get to go to school for the rest of their life. They have an obligation to support the child as well. So they either get a job or you ask for an income to be imputed against them.
 
Berner_Faith said:
Personally I don't think you will get far with this claim. You choosing to have more children is your fault, not the ex's or your daughters. When you choose to have more children you need to understand the financial impact it may have on your family. If you choose to have a relationship with someone who is not as wealthy as your ex's partner that is your issue. You have a responsibility to support your daughter and she shouldn't go with less of your support because you have a new family.

If you have not already done so, you should be looking at imputing an income on your ex. However, if she is attending school to better her life, and in turn your daughters life, good luck with getting more than min wage imputed on her.

Think of it this way... lets say you and your ex made the same amount and neither of you paid CS to the other, how would you feel if she decided to take mat/parental leave and have you pay CS because she made a decision to have a child that had nothing to do with you? I am sure you would think that is equally as unfair you pay MORE CS because of her decision, it goes the same way for you. You shouldn't get a decrease is CS because you decided to have more kids and can't afford to support every one.

And before you get upset, I know it isn't always easy... my partner and I have waited almost 5 years before we even attempted to start planning another child because we knew our financial responsibility for his first children and that is how it should go.
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I asked this exact question of my lawyer and this forum a while ago and I was told flat out that this would increase my child support in a 50/50 set-off situation. Case law states that having a baby is not equal being intentionally unemployed/underemployed.
 
FB_ said:
I asked this exact question of my lawyer and this forum a while ago and I was told flat out that this would increase my child support in a 50/50 set-off situation. Case law states that having a baby is not equal being intentionally unemployed/underemployed.
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True, but that is when the parent takes leave in connection with the new child. In this case, it is the OP's spouse who is on mat-leave, not OP. Thus OP's income hasn't changed, and it is their income that determines c/s.

Had OP taken pat-leave, he could argue that his c/s should drop. But that may only have a minimal impact if the ex still makes little or nothing. So I think it would be best to impute an income to the ex to an amount they are qualified to make, if that hasn't already been done.
 
HammerDad said:
True, but that is when the parent takes leave in connection with the new child. In this case, it is the OP's spouse who is on mat-leave, not OP. Thus OP's income hasn't changed, and it is their income that determines c/s.

Had OP taken pat-leave, he could argue that his c/s should drop. But that may only have a minimal impact if the ex still makes little or nothing. So I think it would be best to impute an income to the ex to an amount they are qualified to make, if that hasn't already been done.
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Exactly...

I do find it funny that no one ever wants to pay more when their new spouse makes a good wage, but when a new spouse makes less and leaves them supporting the new family, they want to pay less.
 
Unfortunately in family law, financial responsibilities to "first family" always come before second families. It's a bit of an issue since SO MANY people end up in blended or second families due to the high divorce rate.

So your decision to have more children or a second family do not in any way diminish your responsibilities to your first family, under the law.
 
So why is it that the circumstances of undue hardship state the below? They say that your duty to support children other than the marriage is a factor...



Your circumstances could include:

  • unusually high debts from supporting your family before the separation or to earn a living,
  • unusually high costs associated with access to a child,
  • a legal duty to support another person,
  • a legal duty to support a child other than a child of the marriage, or
  • a legal duty to support a person who, because of illness, disability or other cause (including education), cannot support himself or herself.
H
 
@Berner_faith in response to your message about how my ex and daughter shouldn't suffer for the fact that I chose to have children, why is it fair that my support payments sky rocketed when she decided to go to school at the age of 36 after working for several years earning a respectable income?
 
lemontree said:
So why is it that the circumstances of undue hardship state the below? They say that your duty to support children other than the marriage is a factor...



Your circumstances could include:

  • unusually high debts from supporting your family before the separation or to earn a living,
  • unusually high costs associated with access to a child,
  • a legal duty to support another person,
  • a legal duty to support a child other than a child of the marriage, or
  • a legal duty to support a person who, because of illness, disability or other cause (including education), cannot support himself or herself.
H
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Do you have a home phone? Cell phone? Internet? TV? Car payments? Do you pay into rrsps? Are you living at or below the poverty line? Are you struggling to put food on the table? Can you afford dinners out even once a week?

Unless you are supporting your family on a very, very limited income and have no extras (TV, cell phone, etc.) your claim for undue hardship is very weak

As for your education question... everyone is welcome to update their education, but doesn't mean they get to stop supporting their children. did you seek to have an income imputed??
 
What would be a fair income to place on the ex? She made 50k annually before she elected to attend school. Now she has done 4 years university.
 
There was an income placed I think it was around 35k but she was making approx. 25k more than that before she decided to go to school.
 
Berner_Faith said:
Do you have a home phone? Cell phone? Internet? TV? Car payments? Do you pay into rrsps? Are you living at or below the poverty line? Are you struggling to put food on the table? Can you afford dinners out even once a week?

Unless you are supporting your family on a very, very limited income and have no extras (TV, cell phone, etc.) your claim for undue hardship is very weak

As for your education question... everyone is welcome to update their education, but doesn't mean they get to stop supporting their children. did you seek to have an income imputed??
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Essentially this ^^^

The requirements to establish undue hardship is very high. You essentially have to be living with no "luxuries" like TV, cell phone, internet, a very basic car, a modest house etc.

And also, while the ex can go back to school, they still have an obligation to support the kid(s). They can't just say they aren't making anything anymore so you are on the hook. Doing that is called being intentionally under-employed and can cause a court to impute an income equal to what they were making (or are capable of making) to them.
 
lemontree said:
What would be a fair income to place on the ex? She made 50k annually before she elected to attend school. Now she has done 4 years university.
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Do you have evidence of their prior income? If you did, did you request that amount be imputed to them? It sounds like they were making $50k, but now has an income of $35k imputed on them. You either agreed to this, or the court found there was some mitigating factors allowing for the lesser amount.

What is their degree in? Go online to Workopolis etc and see what an entry level position in that field, in their geographic area, pays.

When did the ex complete the degree? Was it just last month? If so, it would probably be reasonable to give them some time to find employment in that field. If 6 months down the road, they aren't working, you could ask that incomes be adjusted to amounts paid in that field, in your city for an entry level job, or an amount equal to what she was making prior to going back to school be imputed.
 
It's not totally clear that they are actually finished this degree, however the ex has been in school now for four years. We didn't really agree to an income placed on her, we agreed to an amount of child support without having to go to court and I believe it would work out to her having a salary of approx. 35 down from 50.
She's mad about something now and wants its all re evaluated.
 
It sounds like you don't have a case to have CS reduced because of "undue hardship", but you probably do have a case to have your ex's CS amount raised, which would reduce the amount of offset you pay.

An imputed income of $35K for someone with four years of university sounds way too low to me. Do you have a court order imputing her at $35K? If so, seek to have it changed based on what an entry-level salary in her field would be, as posters above have suggested.

If you don't have a court order, send her your ex a letter saying you wish to change the means of calculating CS to incorporate an income for her which more realistically reflects her earning power, and to use the federal child support tables to calculate that offset. If she objects, go to mediation. Court would be a last resort.
 
Is there any point in which the courts will look at a family household income?
I am paying her, yet she lives in a nicer house, can afford more vacations and has a much higher standard of living etc.. My child obviously benefits from that as well which is great, however I would like to keep that money to spend on her while she is with me if its not needed at the other household.
 
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