Undue Hardship

O

OntarioMomma

New member
I'm pretty sure I know the answer to this, but I need it to be confirmed for me. If you need more info, please let me know.

No court, no lawyers involved to this point, we did our own separation agreement and it's been filed with our divorce papers.

Sole custody to ParentA. Flexible access to ParentB.

ParentB has refused to pay child support for the next few months and is then demanding to pay lower than table, claiming undue hardship. Parents make almost identical amounts.

Does ParentA have any obligation to send ParentB any financial information?
ParentB requested it from ParentA.
ParentA replied saying they'd be willing to consider a negotiated lower amount for a period of time.
ParentB flipped out and said NO and is now demanding this information from ParentA.

Thoughts? Advice?
 
OntarioMomma said:
No court, no lawyers involved to this point, we did our own separation agreement and it's been filed with our divorce papers.
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That's great, if things can stay that way!

Sole custody to ParentA. Flexible access to ParentB.
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Why is there not 50/50 shared parenting?

ParentB has refused to pay child support for the next few months and is then demanding to pay lower than table, claiming undue hardship. Parents make almost identical amounts.
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If both parents have similar paychecks, what exactly is parentB stating as hardship? Have his earnings significantly changed?
 
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There's no 50/50 because ParentB lives 1600 km away from me and the kids. His choice to move. I stayed in the city where our kids grew up.

He's claiming undue hardship because he says his living costs have increased significantly. He had another child with another woman.

We agreed for his child support costs to be reduced for the past 4 years to subsidize some of his travel costs. Which I told him I was willing to negotiate on again, if he would provide proof of income so I had a number to start with.
 
OntarioMomma said:
There's no 50/50 because ParentB lives 1600 km away from me and the kids. His choice to move. I stayed in the city where our kids grew up.

He's claiming undue hardship because he says his living costs have increased significantly. He had another child with another woman.

We agreed for his child support costs to be reduced for the past 4 years to subsidize some of his travel costs. Which I told him I was willing to negotiate on again, if he would provide proof of income so I had a number to start with.
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Of course his living expenses have increased, since he has another child to feed - that still does not free him from being responsible for his children. Since you have already agreed to subsidize his travel costs, what's to stop him from expecting you to subsidize his new living arrangements?
 
Janibel said:
Of course his living expenses have increased, since he has another child to feed - that still does not free him from being responsible for his children. Since you have already agreed to subsidize his travel costs, what's to stop him from expecting you to subsidize his new living arrangements?
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I know it doesn't free him from paying child support for our children.

He can expect whatever he likes, what I need to know is if I have any obligation to provide him any of my financial information. I don't think I do, but, again, I'd like the info from the experts!
 
You both should be providing financial information to each other, especially since section 7 expenses are split proportionate to income. If he is claiming hardship and this goes to court, yes you will have to provide financial information.

Do you guys not exchange annually?
 
OntarioMomma said:
I know it doesn't free him from paying child support for our children.

He can expect whatever he likes, what I need to know is if I have any obligation to provide him any of my financial information. I don't think I do, but, again, I'd like the info from the experts!
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My understanding, from my reading, is that a claim of undue hardship is the exception to the rule. In claiming undue hardship, a judge will look at the total household income of both households (including new partner's income) and at the number of children involved. But also from my reading, you have to have very low poverty level income, or some very high unavoidable expenses to qualify.
 
Berner_Faith said:
You both should be providing financial information to each other, especially since section 7 expenses are split proportionate to income. If he is claiming hardship and this goes to court, yes you will have to provide financial information.

Do you guys not exchange annually?
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We agreed to adjust child support annually based on actual income, but he's provided me with proof of income for 2011 only.
I've never provided anything because he refuses to pay any section 7.
The two times I requested we share daycare expenses, I said I would be also providing income, but he refused, so I didn't.
 
DowntroddenDad said:
My understanding, from my reading, is that a claim of undue hardship is the exception to the rule. In claiming undue hardship, a judge will look at the total household income of both households (including new partner's income) and at the number of children involved. But also from my reading, you have to have very low poverty level income, or some very high unavoidable expenses to qualify.
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This is my understanding as well from the reading I've done.

My understanding is also that since he is the one wanting to adjust for it, he's the one that needs to provide full financial disclosure for me/my lawyer to review.
 
Berner_Faith said:
You both should be providing financial information to each other, especially since section 7 expenses are split proportionate to income. If he is claiming hardship and this goes to court, yes you will have to provide financial information.

Do you guys not exchange annually?
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I understand if it goes to court, I have an obligation to provide this, but it's not there yet, still hoping it doesn't go there.
So, at this point in the discussions, do I have any obligation to provide this info?
 
OntarioMomma said:
I understand if it goes to court, I have an obligation to provide this, but it's not there yet, still hoping it doesn't go there.
So, at this point in the discussions, do I have any obligation to provide this info?
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What reasons do you have to not? It doesn't seem like he is going to let this go, why not provide it and have him provide his? Has he provided you any information?
 
Berner_Faith said:
That's what I am not understanding... if you are trying to keep this out of court, why not follow the same process as the court would?
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See, this is what I'm asking, and what I'm not totally clear on.
I'm completely willing to figure this out with him without taking the court route, including exchanging info.

But from my reading, the onus is on him to first provide household information since he is the one bringing forth the request. (That's the way the court would handle it, the court says the burden of proving an undue hardship claim is on the applicant).

I haven't even received the basic info from him to calculate child support amounts, so I have nothing to go off of to start working it out with him.
 
Question Ontario Momma...

If I remember correctly, your ex is living with a new partner?
Have you re-partnered?

I am not totally familiar with under hardship, but the onus is on him to prove his hardship and he should be providing you documentation of such.

I would send a quick, polite email and state that once you receive proof of his total household income and everything required to assess undue hardship, you will then provide him with yours.

I think the problem you may run into, is if he decides to take this to court and you are simply refusing to provide any financial information at all, this may look bad on you, but again, I am not very familiar with this.
 
So - the thing is - who cares? If you are willing to give it to him then do so - you look co-operative IF it ever goes to court. Since you don't have a 50/50 access arrangement, your income is irrelevant in the CS calculation anyway.

Let him know that if he wants to claim undue hardship that the court would consider his HOUSEHOLD income, not just his - that may shut him up.

Remind him that a new child does not negate his obligation to support his first children and that if he pushes things to court the judge WILL make him pay guideline (assuming he can't prove undue hardship - and good luck with that). AND he WILL be ordered to pay section 7 expenses. He's getting off easy right now - he should not be rocking the boat.
 
Berner_Faith said:
Question Ontario Momma...

If I remember correctly, your ex is living with a new partner?
Have you re-partnered?

I am not totally familiar with under hardship, but the onus is on him to prove his hardship and he should be providing you documentation of such.

I would send a quick, polite email and state that once you receive proof of his total household income and everything required to assess undue hardship, you will then provide him with yours.

I think the problem you may run into, is if he decides to take this to court and you are simply refusing to provide any financial information at all, this may look bad on you, but again, I am not very familiar with this.
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Yes, he's living with his new partner, I do have a new partner, but we haven't moved in together yet.

Thanks Berner, that is exactly what I did. I haven't refused anything at all, I only want us to follow the proper procedures, which to date, he's never done.
 
HappyMomma said:
Remind him that a new child does not negate his obligation to support his first children and that if he pushes things to court the judge WILL make him pay guideline (assuming he can't prove undue hardship - and good luck with that). AND he WILL be ordered to pay section 7 expenses. He's getting off easy right now - he should not be rocking the boat.
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Not entirely true... according to the Federal Child Support Guidelines and Undue Hardship

1. Are there circumstances that could cause undue hardship for you, or for the other parent or a child?

If you ask for a change in your child support amount based on undue hardship, you must show that your circumstances would make it difficult to:

pay the required amount, or
support the child on that amount.
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.
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  • So if he can prove undue hardship because he has another child to support, she certainly could see a reduction in CS.
 
Parent A and Parent B should both be providing each other their financial information. Exchanging tax returns is the easiest way to do this, and there is no good reason not to.

Parent B should be paying table support if the kids are residing with him less than 40% of the time over the year, unless A and B have agreed on a different arrangement. If Parent B thinks he should pay less because he is experiencing undue hardship, the onus is on him to prove that his situation meets the criteria for undue hardship. The details are here:

Step 8: dealing with undue hardship - The Federal Child Support Guidelines: Step-by-Step

If Parent B can make a good argument, with financial details, and Parent A buys it, then they can agree between themselves to lower child support payments. However, if Parent A doesn't agree with Parent B's case, as I understand it Parent B still owes table child support.

A and B can go to a mediator to resolve this, or, as a last resort, Parent B can go to court and ask to have support payments lowered. But he can't get out of paying CS just by saying he's experiencing hardship - he has to either reach an agreement with A or get a court order varying his payments.

The income of everyone in the household has to be taken into consideration, as does the relative living standards of the household. B cannot claim undue hardship if his household enjoys more luxuries than Parent A's.
 
stripes said:
Parent A and Parent B should both be providing each other their financial information. Exchanging tax returns is the easiest way to do this, and there is no good reason not to.

Parent B should be paying table support if the kids are residing with him less than 40% of the time over the year, unless A and B have agreed on a different arrangement. If Parent B thinks he should pay less because he is experiencing undue hardship, the onus is on him to prove that his situation meets the criteria for undue hardship. The details are here:

Step 8: dealing with undue hardship - The Federal Child Support Guidelines: Step-by-Step

If Parent B can make a good argument, with financial details, and Parent A buys it, then they can agree between themselves to lower child support payments. However, if Parent A doesn't agree with Parent B's case, as I understand it Parent B still owes table child support.

A and B can go to a mediator to resolve this, or, as a last resort, Parent B can go to court and ask to have support payments lowered. But he can't get out of paying CS just by saying he's experiencing hardship - he has to either reach an agreement with A or get a court order varying his payments.

The income of everyone in the household has to be taken into consideration, as does the relative living standards of the household. B cannot claim undue hardship if his household enjoys more luxuries than Parent A's.
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Thank you so much Stripes. This is exactly how I've read it and understood it.
 
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