Undue Hardship

[Mess]

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.

This is correct.
Family Law Act - O. Reg. 391/97

This is Schedule II from the Child Support Guidelines. It is the "Comparison of Household Standards of Living Test." This is what the law requires to compare households to determine if there is a case for undue hardship. The formula is not that complicated and you can do it by hand with a calculator in a few minutes if you have all the required information.

If the required information is not provided, then there is no undue hardship. A court requires this.

In your situation, your ex is asking for a personal agreement for undue hardship but not providing any information. In this situation your answer is simply "No." You cannot be forced to sign any agreement. You may sign an agreement if you choose to.

The risk that anyone runs if they choose not to is the question of whether they were being "reasonable" in terms of a court awarding costs. If you think you would not lose in court, then you have nothing to worry about. If you think your ex would receive a decision in their favour, you are not at risk until the point where they provide full disclosure. Up until full disclosure you cannot be expected to agree to anything.

 

[mcdreamy]

You have a written separation agreement - correct?

Does it not deal with the exchange of financial information? Mine sets out that, while the obligation for the payment of child support exists, both parties will exchange financial information upon request. You might have a contractual obligation to exchange.

 

[OntarioMomma]

You have a written separation agreement - correct?

Does it not deal with the exchange of financial information? Mine sets out that, while the obligation for the payment of child support exists, both parties will exchange financial information upon request. You might have a contractual obligation to exchange.

Yep. It indicates the payor will provide proof of previous years income by June 30 of each year and the adjustment will begin July 1 for the period of 12 months. We didn't include anything about both exchanging info.

Appreciate the link and info Mess.

 

[OntarioMomma]

This is correct.
Family Law Act - O. Reg. 391/97

This is Schedule II from the Child Support Guidelines. It is the "Comparison of Household Standards of Living Test." This is what the law requires to compare households to determine if there is a case for undue hardship. The formula is not that complicated and you can do it by hand with a calculator in a few minutes if you have all the required information.

If the required information is not provided, then there is no undue hardship. A court requires this.

In your situation, your ex is asking for a personal agreement for undue hardship but not providing any information. In this situation your answer is simply "No." You cannot be forced to sign any agreement. You may sign an agreement if you choose to.

The risk that anyone runs if they choose not to is the question of whether they were being "reasonable" in terms of a court awarding costs. If you think you would not lose in court, then you have nothing to worry about. If you think your ex would receive a decision in their favour, you are not at risk until the point where they provide full disclosure. Up until full disclosure you cannot be expected to agree to anything.

I'm confident it would not go through in court as we have almost identical incomes, plus he has an additional adult in his household providing a second income. Plus he has child support arrears, plus he's always refused to split any section 7 expenses. He has generous and flexible access based completely off of his availability. I'm confident if we went to court, the court would award him less than I've agreed to/would be offering, both in terms of child support and access.
Again, appreciate the feedback!

 

[HappyMomma]

Not entirely true... according to the Federal Child Support Guidelines and Undue Hardship

So if he can prove undue hardship because he has another child to support, she certainly could see a reduction in CS.

That's what I said - I just added that he'll have a hard time proving that considering household income will be looked at......

 

[OntarioMomma]

I have another hypothetical question:

If he attempts claims undue hardship, then the whole household's income
is looked at.

Have the courts ever imputed an income to a new spouse who chooses to stay home that is fully capable of working to help support their own household?
I imagine in an attempt to claim for undue hardship, this could come into play? Has anyone ever read any case law where that happened?

 

[DowntroddenDad]

I have another hypothetical question:

If he attempts claims undue hardship, then the whole household's income
is looked at.

Have the courts ever imputed an income to a new spouse who chooses to stay home that is fully capable of working to help support their own household?
I imagine in an attempt to claim for undue hardship, this could come into play? Has anyone ever read any case law where that happened?

All I have read about undue hardship centres around actual incomes, not imputed ones.

 

[stripes]

I don't know if income could be imputed to a person who is not a party to the case - but the stay-at-home spouse might be relevant in assessing the standard of living in the two households. If the payor household can afford to forego the potential income of a second earner, that doesn't sound like the household is in dire financial straits. I suspect having a stay-at-home spouse would be regarded as a luxury these days when the norm is that every adult in the household contribures financially. Might be different if the spouse was out of the workforce because of disability or illness or very young children (but even in that case, having an adult staying home full time beyond parental leave is a pretty luxurious form of child care).

I have another hypothetical question:

If he attempts claims undue hardship, then the whole household's income
is looked at.

Have the courts ever imputed an income to a new spouse who chooses to stay home that is fully capable of working to help support their own household?
I imagine in an attempt to claim for undue hardship, this could come into play? Has anyone ever read any case law where that happened?

 

[dad2bandm]

Supporting a new family, will not likely be "undue hardship" - so good luck to him trying to show that, despite what people are reading.

Both parents need to "grow up" and provide full and frank income disclosure, to each other. Exchange tax information and NOAs. Just because one won't, doesn't mean the other parent is any less "immature" for not simply providing it.