I am a Mother of two children, now 16 & 13. Last year they…

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Answer 1

Answered in 5 hours by:

12/28/2008

Lawyer: Debra, Lawyer replied 14 years ago

Debra, Lawyer

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Basic child support is set by the provincial tables under the Federal Child Support Guidelines and is basically non-discretionary because it's based solely on the payor's income. The income of the other parent only comes into play if you are asked to pay special expenses which include private school tuition, orthodontic fees, child care expenses, sometimes music and sport fees etc.

If you are not paying these additional fees only your income matters and the amount you have to pay is based on your income and so there is no consideration for undue hardship. There is if you are asked for a retroactive amount but that's not the case.

It's highly unlikely you will be able to pay less. The guidelines were created to avoid the ongoing court battles that took place before the guidelines and are based both on the province and the income of the payor so the payor's incomes had been seriously considered already.

The income of the new spouse never factors in, even if special expenses are being considered.

I am sorry I don't have a better answer for you.

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Answer 2

Lawyer: Debra, Lawyer replied 14 years ago

It's how many of us live, to be frank. It's unbelievably unfair but no one cares. The kids are supposed to come first but they don't. The lifestyles in both houses are supposed to be the same but rarely are. The system is a failure but it used to be even worse.

Studies have shown that one of the most harmful things for kids is to witness the discrepancies in the lifestyles between their two parents but so what? It's not considered by anyone but the parent with the lower lifestyle. Though everyone involved in the system, from the lawyers to the arbitrators, to the mediators to the judges know the truth.

You can try to get an adjustment based on undue hardship (what have you got to lose) and maybe you will be one of the luck ones. I haven't heard it working yet but there's always hope. If it works please let me know. It would make my day.

Answer 3

Lawyer: Debra, Lawyer replied 14 years ago

I don't know of any. I wish I did.

The only cases of undue hardship I know about deal with a retroactive lump sum payment.

In my view, the single most unfair piece is that we don't have the money to retain the top lawyers to fight for us.

I have my kids living with me but in my case child support only helps a bit because I was forced to settle for drastically less than what I was entitled to because I didn't have the money to fight. The saddest thing for me is this is just what happened to my mother too. She warned me. I warn my daughter subtly.

I wish I had an answer for you.

Answer 4

Lawyer: Debra, Lawyer replied 14 years ago

I sent all my friends into a panic when they saw what I went through.

I stayed home with my kids for about 16 years. I didn't even have my own credit card and couldn't get one for about three years, until I signed a separation agreement and the bank gave me a line of credit. My ex-husband is the managing partner of a downtown Toronto leading law firm. I couldn't afford to fight him and so now he lives the most luxurious lifestyle imaginable (lives with a young doctor closer to my daughter's age) and my kids and I have nothing except each other.

A while ago I told my lawyer I was going to write a book on our patriarchal legal system and his response was "oh, I didn't know you wanted to write fiction."!

We aren't going to change the laws but if I ever win a lottery I will open up a legal clinic for women. So what has happened to me and you and most other woman who can't afford lawyers will at least stop in Toronto. But, I don't even buy lottery tickets.

Answer 5

Lawyer: Debra, Lawyer replied 14 years ago

Why don't you get a few opinions and see what you come up with.

You can contact the Law Society of Upper Canada and use their Lawyer Referral Service. You will be given the name of three family lawyers and you can consult with any or all of them and you can give them all the financial details and see if they feel there's any hope. You can also find out what they will charge.

I don't have the names of the cases where the Court didn't order a retroactive payment because of undue hardship. There may be reported cases but I don't have them. But. the legislation sets out clearly that undue hardship is a valid reason not to award the payment so it's a bit different.

Answer 6

Lawyer: Debra, Lawyer replied 14 years ago

I understand your point but the Court will say that the amount you are required to pay for child support is what is fair based on your income. It's not likely the Court will allow you to reduce it because of your personal expenses because the point of child support is that it's the right of the child so they aren't going to allow the child's right to be put second place.

I can't say what the Court would expect you do to about your house but my guess is the conclusion would be that your obligation to your children needs to come first. If you are living in a house and the house is so expensive to keep the Court may in fact say it's you choice to have that house but you do not have a choice about child support.

In your case the fact is that what's happening to you isn't fair because the father is so well off but in most cases there are parents who want to say, I have to many expenses so let me pay less child support and if the Court allowed that then what's stopping everyone from doing just that. They can put up their own expenses and give less to the custodial parent. And, in most cases the kids would suffer because usually the custodial parent doesn't have enough money and now the parent will get less because of the lifestyle of the other parent.

So, that argument will not work. The only argument that might would be that it's grossly unfair when you look at the massive discrepancy in the means and lifestyles and it hurts the kids.

Answer 7

Lawyer: Debra, Lawyer replied 14 years ago

Generally your debs aren't looked at unless they are debst that were incurred to support your family just before the separation. Other debts aren't looked at.

But, what you've portrayed is a situation where there is one household that's really wealthy with two people earning substantial money and a second household that's struggling terribly. So, if the discrepancy is so blatant and even shocking I am hoping for your sake that you can convince a judge that in this particular case it's not only unfair but it's not in the best interests of the kids because there lifestyle is one of affluence, with or without your support, when they live at home and when they visit you they can't do anything because you have no money.

It's a long shot but I am just trying to think creatively.

The problem, as you noted some time ago is that you don't meet any of the criteria for claiming undue hardship. If you did then the income of the father and his spouse would both be looked at but I am really struggling with how to get you over the initial hurdle of not meeting any of the list of criteria needed to make this undue hardship claim.

Answer 8

Lawyer: Debra, Lawyer replied 14 years ago

If misery loves company you should know that so far I have spent over twice that on legal fees!

Here's what a family judge said about what undue hardship really means:

"Undue hardship is a tough threshold to meet. Synonyms for undue include: excessive, extreme, improper, unreasonable, unjustified. It is more than awkward or inconvenient."

Here's an old article but it's helpful I think:

http://www.4famlaw.com/undue.htm

I've read about a dozen webpages after providing you with that link but then realized you've probably read them all.

I am not sure what you mean by "other" though.

Answer 9

Lawyer: Debra, Lawyer replied 14 years ago

I am not sure how this site works all time either. I may have closed the question by mistake. It also closes if there is inactivity.

I have no idea what the quote is talking about.

I haven't been able to find anything recent. The problem is, and I guess you know this, is that the undue hardship issue is very, very rarely used aside from when someone is seeking a large retroactive lump sum. It's just not argued much and is virtually never accepted as a valid argument.

Why don't you go over to the law school and see if you can use their library. You can also drop in on their student run legal clinic and see if you can get a student to assist you.

I can't find what those words mean. I researched all I could but I don't have access to all the research tools a practicing lawyer would have as I work online out of my home and I don't have accounts that are needed for researching to prepare for Court because this site is really just for online general information.

Answer 10

Lawyer: Debra, Lawyer replied 14 years ago

You could get ordered to pay his costs if you lose. He won't sue you, rather, the judge will order it at the end of the hearing.

The system works really well for those with a lot of money.

Why don't you just go to the law school on Monday?

Answer 11

Lawyer: Debra, Lawyer replied 14 years ago

That's what I was thinking. A student could do some research for you or show you how to check all the reported cased in the library,either manually or on line.

They might even be willing to help you put together some legal arguments. I don't know. You can speak to the director and explain you are self-representing and would like any help you can get.

When I was in law school I would have been thrilled to have been able to help you so you never know. You've got nothing to lose.

Answer 12

Lawyer: Debra, Lawyer replied 14 years ago

I can't find it online.

You will be able to find it at the library for sure.

I think this is the proper cite:

Martin v. Gerard, June 16, 1997, [1997] O.J. No. 2517, (Ont. Gen. Div.),

I hope the library proves fruitful.

Answer 13

Lawyer: Debra, Lawyer replied 14 years ago

If you are planning to go for a variation in the hopes of reducing the amount you are paying then it doesn't really make that much sense to wait and then do that when you are being asked for more. If your argument is that you can't even manage this it will look like you are just reacting to his application and that it's your way of fighting it so you may not be seen as credible.

If you lose he will likely get costs.

If he responds to your application and the Court says no change so neither of you win then there won't be an order as to costs.

Answer 14

Lawyer: Debra, Lawyer replied 14 years ago

I have no access to anything that happens with respect to credit cards. I just answer questions and when someone accepts the question I get a portion of the money they pay. The same is with the bonus. It just goes into my account and get an email telling me this is so.

From what I can see though, by looking at my account, you accepted a question for $15.00 and then paid a bonus for $20.

If that's not correct please let me know and I can contact the administration for you.

Answer 15

Lawyer: Debra, Lawyer replied 14 years ago

I will let them know right now. I am not sure how long it will take but once I ask for the refund it will be processed at some point soon.

I hope you can work things out.

Answer 16

Lawyer: Debra, Lawyer replied 14 years ago

It's not necessarily for just one year. This is something the Court will want to address. The support can be adjusted each year based on what the Court says should happen now.

The judge knows that people can't come back to court each year.

I hope things work out for you.

Answer 17

Lawyer: Debra, Lawyer replied 14 years ago

The mediation/arbitration routes are definitely cheaper if you are doing a whole trial but for a variation application they may not be.

If you want to go for arbitration your ex has to agree. You will then half to pay for half of the arbitrator's fees and, depending on how you do the arbitration, you may have to pay for a Court reporter as well.

Mediation will be more affordable but could end up being a waste of time and you negotiating on your own against your ex and his lawyer may not be the best thing for you to have to go through.

Answer 18

Lawyer: Debra, Lawyer replied 14 years ago

I am sorry for the delay. Because you posted on the same post but have accepted before the site doesn't put your question on my question list. I get an email but since I get hundreds a day I don't always check them regularly.

Technically it means that you pay until the child's 23rd birthday. But, if the child has finished school before that time you may be able to terminate support earlier.

I think you can argue that it's money for the previous years and that it's not fair to include the money now because you had to do without then and so it makes sense as it's really supposed to compensate you for not getting what you should have.

I am a Mother of two children, now 16 & 13. Last year they…

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