Undue Hardship

L

Lolita123

New member
Good morning,


I was wondering if anyone here had been or has a case where Undue Hardship has been succesfull in the fact that the payer has a previous obligation under a court order to pay CS for a dependant child.


My husband and I have been going through almost 2 years of dealing with the ex... they had an original separation agreement done with a mediator that was signed and all.. When it was time to file for divorce, the ex now scrapped everything on the agreement. My husband gave her everything that she wanted to try and avoid court but the only element left is CS. He has a daughter from a previous relationship who is 16 and pays CS for. His lawyer recommanded that the CS be lowered for the time that he is still paying for the first dependant and after that to pay full table.


Ex wants full table… Full table is $1350 for 2 kids and the offer was $1000...


She now has a boyfriend who has been living with her for almost a year. Him and I would say make close to the same amount (I am assuming since we both work for the Gov. and based on his job title).


I also have 2 children myself 50/50 that I don't get or pay support for since ex and I make pretty much the same amount.


So.. any guidance? I know that Undue Hardship is a hard thing to prove… but in this case he does meet one of the criteria to be considered which is support another child from previous relationship… I would just love to read a case that was succesfull based on that.
 
Your kids have no bearing on this. They are your responsibility.

Her living situation means nothing as well.

He will have to pay full table for the kids.

His kids are entitled to child support. He had three children with two different women. He should have prepared himself for having to pay support.

You may need to check canlii for cases but in my extensive reading on cs I have not seen anyone be successful in reducing cs because they had three households to support.
 
rockscan said:
Your kids have no bearing on this. They are your responsibility.

Her living situation means nothing as well.

He will have to pay full table for the kids.

His kids are entitled to child support. He had three children with two different women. He should have prepared himself for having to pay support.

You may need to check canlii for cases but in my extensive reading on cs I have not seen anyone be successful in reducing cs because they had three households to support.
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The law does state that you can claim unduehardship and a previous child support obligation is one of them: (quoted from Justice Website)


Circumstances that may cause a spouse or child to suffer undue hardship include the following:
C. The spouse has a legal duty under a judgment, order or written separation agreement to support any person;


This is the case for my spouse…


then it goes on to say that:
Despite a determination of undue hardship under subsection (1), 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 determining the amount of child support under any of the sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.


Basically, at that point… HER income and her partner's income would be compared to my spouse income and MY income to determine the standard of living of both household…


my stating that I have kids was more in the fact that I am not sure if how many kids in a household affect the results of standard of living …


I know that people have been unsuccesfull in claiming unduehardship when they have a first obligation and then go on to have other kids with the new spouse and ask to reduce the CS of the first child… it's the concept of first family should not suffer… But in this case the law says that HE DOES have a claim to ask a Reduction until the first CS is over.


And trust me… he does not contribute anything directly to my children (even if he would want to he barely has nothing left after all his expenses paid)… so he does not support 3 households… he supports 2 and support himself :)
 
Again, its a crap shoot. I have seen cases where the judge denied the undue hardship and blasted the father for claiming it. I have also read many statements on here and on blogs that the undue hardship is a giant climb. Plus there are those cases where ex has moved in with a millionaire when dad is living in his car and still paying full table support.

I have not seen any posts on this forum where a payor was successful. You may need to do a very deep dive on canlii and possibly spend some time at the library going through case law.

Thats not to say he shouldnt try but if he does, he may want to do it the self rep route. Every dollar spent will be scrutinized.
 
I don't have case law, but it sounds like you're doing the right thing. Compare both homes' standard of living and if you're lower, cs may be lowered as well. It's similar with stepkids getting lower than table amounts. Just be prepared for the boyfriend to move out and claim he doesn't live there.
 
I don’t know..... I think you are on a slippery slope here.

My situation is somewhat similar to yours- My current partner (together 4 years) has two children from two previous relationships and I have one from my previous relationship. No kids together, we are done lol.

I wasn’t receiving CS for two years and am currently fighting for proper CS from ex.
Current partner is paying full table for both of his kids.

My big thing that I made clear to him when we first got together is that our kids are all treated equally and are all given the same opportunities, to the best of our abilities. I couldn’t imagine in my wildest dreams going to the mother of his youngest daughter and telling her that she is going to get less money than his other kid.
Is it hard paying out that much money every month? Yup
Do we have to make sacrifices? Oh hell yup- we rent a small house, drive one vehicle, buy second hand clothes for ourselves, and have never been on vacation in our 4 years together.
Do I sometimes wish we had that extra money to build a better life together? Sure. But I knew what I was getting into when I got with him. I knew there would be sacrifice- and not just the financial kind.

My advice? Drop it. Getting caught up in how much money your partner has to pay his ex(es) is a quick way to run your relationship off the tracks. Unless you guys are loosing your home over this, then it might be worth pursuing. But it sounds like you are $350 a month apart between your offer and full table. Save on the lawyer fees, make a few sacrifices, and revel in the fact that your partner’s ex will never be able to tell his kid that he financially “favoured” their sibling over them
 
Do you have cable/satellite? Internet? Cell phones? Hobbies? Basically if you have money to spend on things that are not necessities your claim will most likely be denied. His children deserve to be supported equally and this will be a very hard case to win unfortunately


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Berner_Faith said:
Do you have cable/satellite? Internet? Cell phones? Hobbies? Basically if you have money to spend on things that are not necessities your claim will most likely be denied. His children deserve to be supported equally and this will be a very hard case to win unfortunately


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Exactly.

Show me the household budget of someone whose income dictates that their BASE CS payments for 2 kids is $1350 and I will 10000% be able to show you where you can make some cut backs on lifestyle so that said person is able to maintain this obligation.

Judge will throw this out laughing- and will order costs to mom.
 
Lolita123 said:
And trust me… he does not contribute anything directly to my children (even if he would want to he barely has nothing left after all his expenses paid)… so he does not support 3 households… he supports 2 and support himself :)
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Does he rent a separate basement apartment from you in the home you live in? Probably not.

You share a home (and presumably a bedroom). If he is contributing $1 to the rent/mortgage/utilities/internet/cable/property taxes/insurance/groceries/gas in the car, guess what? He supports your household and your children. Because if he was not living with you, any single dollar that he contributes to the bills is money that you would have to otherwise come up with on your own.
You have a government job. He has an income that dictates $1350/month child support. I think you both will be just fine.
 
I still think the OP has a good chance at this.

When cs is ordered less than guideline amounts due to access travel costs (undue hardship), it doesn't matter if they have cable and a cell phone. Other cs obligation orders is listed as a factor, similar to access travel costs, so it's more of a given... although they would still have to show high cs/s7 costs to 1st child. Given the amount of cs, it looks like he makes good income and pays a lot. The fact that OP works and the undue hardship claim isn't to support someone staying home helps too. Also the 1st child cs is almost over, so it'll be easier to get a temporary relief and then go back to table amounts, supporting 2 homes instead of 3.

Then it'll come to the standard of living at both homes. So it's not that you can't have luxury items, you just need less of them and less overall at the end of the month.
 
Berner_Faith said:
Do you have cable/satellite? Internet? Cell phones? Hobbies? Basically if you have money to spend on things that are not necessities your claim will most likely be denied. His children deserve to be supported equally and this will be a very hard case to win unfortunately


Sent from my iPhone using Tapatalk
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He pays nothing for my children.. and I can tell you that I spend nothing close to $1350 a month for them considering EVERYTHING from food to housing etc... and my kids are in sports and not his because she says that she cannot afford it… and I am not the one making the claim.. he is… and yes I DO have cable and Internet that I PAY for.. he pays half of the mortgage, utilities, his truck, insurance etc.. he has a cell phone provided by his work since he's on call frequently and hobbies no he does not.. he is left with $350 every to weeks to pay for groceries, gaz and everything else that is not a fix expense…


and if the case is that : His children deserve to be supported equally… well that is not the case :)


I think that $1000 a month is more than reasonnable while he still pays for his other daughter who only get $375 a month… back when they were together… his ex was outraged at having to pay $375 for his first daughter… now that it's her turn… $500 per kids is not enough… strange
 
Selfrepmom said:
Exactly.

Show me the household budget of someone whose income dictates that their BASE CS payments for 2 kids is $1350 and I will 10000% be able to show you where you can make some cut backs on lifestyle so that said person is able to maintain this obligation.

Judge will throw this out laughing- and will order costs to mom.
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first of all this is happening in Québec so cost are not awarded… second I can tell you that in no way we live a luxurious life.. we have a mortgage of $1600 including property taxes.. she on the other end rents a $2000 a month home… he has been carrying the LOC that they acquired during marriage since she refused to take on her share… he was left with the truck and left her the car that was paid off to reduce her payments ratio.. she got the profit of the sale of the house… she got everything in the house except 2 couches and a TV… and I agree based on his income sure.. he could pay that amount and will once he is done with his first obligation that was existing when they were together… that CS that he pays for his first daughter was never part of the family income since day one since he was paying it even when they were married…


I also know that her and her new spouse have a higher standard of living than us so that is also something the judge will take into consideration…


But.. really… my question was has anybody seen any court cases which a decision was made on scenarios where someone has a previous obligation… whether it was an award on no… not because of a second family etc... I wanted to read on the rationale behind the decisions :)
 
StillPaying said:
I don't have case law, but it sounds like you're doing the right thing. Compare both homes' standard of living and if you're lower, cs may be lowered as well. It's similar with stepkids getting lower than table amounts. Just be prepared for the boyfriend to move out and claim he doesn't live there.
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Thank you for confirming my understanding of how it works :)
 
Selfrepmom said:
I don’t know..... I think you are on a slippery slope here.

My situation is somewhat similar to yours- My current partner (together 4 years) has two children from two previous relationships and I have one from my previous relationship. No kids together, we are done lol. SAME HERE

I wasn’t receiving CS for two years and am currently fighting for proper CS from ex.
Current partner is paying full table for both of his kids.

My big thing that I made clear to him when we first got together is that our kids are all treated equally and are all given the same opportunities, to the best of our abilities. Well that is not the case for us… I mean I pay for my children but I can tell you that I don't spend that much on my kids and my kids are even in sports and his ex refuses to put them in any sports


I couldn’t imagine in my wildest dreams going to the mother of his youngest daughter and telling her that she is going to get less money than his other kid. In this case she is getting $125 MORE per kids than his oldest one.. and back when they were together she would complain on how she felt paying CS in that amount was stupid… tables have turned now… To give her full table.. she would get $300 MORE PER KID than his oldest…

Is it hard paying out that much money every month? Yup
Do we have to make sacrifices? Oh hell yup- we rent a small house, drive one vehicle, buy second hand clothes for ourselves, and have never been on vacation in our 4 years together. (I work as a travel agent on top of my regular day job to afford vacations and I pay for him since he could not afford it.. I own my house which is less than what she is paying to rent her house… in no way do we have a lavish lifestyle )



Do I sometimes wish we had that extra money to build a better life together? Sure. But I knew what I was getting into when I got with him. I knew there would be sacrifice- and not just the financial kind. (they had an agreement about CS and everything about their seperation that was signed.. she just decided to change everything when he told her he would officially filed for divorce using the agreement.. she told him ok but then contested and changed everything… so yes we were making things work based on the support that was agreed upon due to many other concessions he made upon separation…)

My advice? Drop it. Getting caught up in how much money your partner has to pay his ex(es) is a quick way to run your relationship off the tracks.
(that does not affect me since we have separate bank account )


Unless you guys are loosing your home over this, then it might be worth pursuing. But it sounds like you are $350 a month apart between your offer and full table. (he offered her $1,100 and then full once he's done with his oldest which should be give or take 2 years..)


Save on the lawyer fees, make a few sacrifices, and revel in the fact that your partner’s ex will never be able to tell his kid that he financially “favoured” their sibling over them (cannot be claimed since I pay for MY Children and the only thing we share are living expenses) his kids his responsability.. my kids my responsability.
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thank you for your input :)
 
government jobs... vacations... own homes... sports for kids.... (probably lines of credits and/or credit cards)

Undue hardship? Unless you're scraping along on government or charitable hand-outs for your food/rent I'd forget any sort of undue hardship claim.

A person can obtain credit/financial management advice for free.
 
arabian said:
government jobs... vacations... own homes... sports for kids.... (probably lines of credits and/or credit cards)

Undue hardship? Unless you're scraping along on government or charitable hand-outs for your food/rent I'd forget any sort of undue hardship claim.

A person can obtain credit/financial management advice for free.
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I have a government job.. my spouse does not… I pay for vacations with a second job... my spouse does not.. It was my home before I met him and it's less per month than her rent… sports for kids.. yes I put them first and cut back on me… line of credit.. no I don't have one.. he does but it's form the separation… credit card.. I have one that has a limit of $2000 and nothing on it.. he has one that has $3000 that she owes him…


This undue hardship is for him… not me… he is the one who pays not me… yes they will consider me to compare household .. but they will also consider her BF who also has a gov job…


All that to say that his children are not going without… Who were can claim to have a net income of $4,800 PER MONTH in their bank account? I sure don't myself even with my gov job… well that is what SHE has to spend every month… with $1000 in CS per month.. so I am pretty sure that her kids would not go without if she was not spending like she is.. She would be the one needing financial consultation because I can tell you that the money does not go on these kids…
 
Lolita123 said:
I think that $1000 a month is more than reasonnable while he still pays for his other daughter who only get $375 a month… back when they were together… his ex was outraged at having to pay $375 for his first daughter… now that it's her turn… $500 per kids is not enough… strange
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Wait..... somethings not adding up here. Why is he only paying $375/month for child #1 when guideline for #2 & #3 is $1350? Has he never updated his support payments for child #1? Watch out for that one....

Try to not get so caught up in your partner’s exes lives (how much they spend,what they do, how much they wronged your husband). That shit literally will eat you alive and cause resentment in your relationship (speaking from experience)

To answer your original question, I have never came across a case like you are looking for. When my partner was originally going through court with ex #2, his lawyer never once suggested varying CS for child #2 based on obligation to child #1. Pretty sure he would have been murdered in his sleep by ex #2 if he so much as suggested it lol.

If he is truly strapped for cash it might be worth looking into. But the fact alone that he is paying a lawyer to give him this advice discredits his position in the eyes of a judge I would think
 
Lolita123 said:
we have a mortgage of $1600 including property taxes..
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You own a house.

I can tell you right now that your hardship claim is not very likely to succeed. You are arguing standard of living, but that only comes into play after you have hardship.

You don't have hardship, you just have a lower standard of living than the ex. Perhaps it should matter, but it does not.
 
Lolita123 said:
Anyone interested? Found a case where undue hardship based on a previous child support order is in place was successful and the father in this case was awarded to pay less than the CS table


https://www.canlii.org/en/on/onsc/d...IHN1cHBvcnQsIHByZXZpb3VzAAAAAAE&resultIndex=7
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This case is also based on the fact that the husband was unemployed for a year, was already thousands of dollars in arrears AND had an imputed income of less than $30,000

Something tells me your husband makes more than $30k, and is not thousands in arrears. Well, unless mom #1 starts going after him for an update in support + past due updates. Then he might be lol.
 
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