Undue Hardship in Paying Child Support For First v Second Family
Updated: Jun 15
Often enough, men and women meet, get together, live together as common law or marry, and have children. And again, often enough, couples then decide to separate and go their own way. Many times, children live with either the mother or the father. Inevitably, one person becomes the payor while the person who takes care of the children is the payee.
The payor who has been paying the payee through his first relationship has the unfortunate burden of paying the second separated spouse, who becomes the payee.
Legally, the payor continues to pay his previous spouse, the payee, but also is required to pay the second payee.
The question that arises is how a payor can possibly pay two households. Can a payor use the reason or excuse of an “undue hardship” argument to legally prevent payment towards the first family?
Crawford v Bormeo, a recent Superior Court case gives us some ideas and guidance.
Justice Jain notes quoting the Court of Appeal in Fisher v Fisher, a 2008 case that emphasised that “a payors obligations towards second families must be considered in context, i.e. the \\\"first-family-first\\\" principle is not absolute.”
Justice Jain explains that when considering the context of this situation, the court does not think that the intention of the \\\"first-family-first\\\" was to treat the respondent’s children in the second relationship so unequally to the children of his first marriage.
Although the respondent’s obligations to his younger children with the applicant may affect support for the first family, the court found that he still has an equal obligation to both sets of children and he is obligated to support the children in accordance with the Child Support Guidelines and the Family Law Act.
The respondent repeated his submissions that he cannot afford to pay child support to the applicant because of his existing obligations to the children and spouse of his first relationship (Ms. Bermeo and her two children). He referred and relied upon the temporary (without prejudice) endorsement and order of Graham J. dated April 5, 2019, which he says, supported an \"undue hardship\" claim.
Justice Jain agreed that the argument of \"undue hardship\" is used as a common defence by payors. Counsel for the applicant attempted to provide the court with all the necessary information required to make a properly informed decision if the respondent advanced a claim of undue hardship. However, he correctly submitted that it is the payor that is responsible to advance this claim and properly plead it as a defence.
In this case, the court noted that the respondent has filed nothing except a financial statement from almost one year ago.
After hearing all the parties and reviewing all materials, the court accepted the applicant’s submission that none of the required elements of an \"undue hardship\" claim have been established by the respondent at this time. This court is not going to treat the children from the applicant and respondent any differently than the children from the respondent’s first marriage.
The court therefore made a final order that the respondent pay the applicant child support in the amount of $1,827.00 per month in accordance with the Guidelines retroactive to the date of November 1, 2018. There shall further be an order that the respondent contribute 53% towards the children’s daycare expenses.
The court was cognizant that the respondent’s financial position and lack of agreement regarding the child support issues may mean he could have difficulty complying with the order. If in the future the respondent falls into arrears on the child support payments, the court ordered that he may bring a Motion to Change the ongoing child support obligation and any arrears that may have accrued after this order. At that time, he can advance his \"undue hardship\" claim along with all the evidence needed to support it. Even if the defence is pled and if the respondent meets the high threshold standard of an undue hardship analysis, the court would then have to apply the SOL test and be satisfied that his standard of living is below that of the recipients'. Until then, the Family Responsibility Office will have to deal with collecting and enforcing both support Orders in accordance with their mandate.
The lesson that I can gather from this case is that “actions have consequences.” The action of having children inevitably means paying support. The action of having a second set of children, again have a consequence - pay support.
In the above interesting case, the respondent father was self represented. As the Judge notes, the father did not advance a strong case of undue hardship.
A lawyer could have assisted him in better putting together the arguments for undue hardship.
At ShankarLaw, we are happy to assist and guide you through whatever challenges you have. We work in three counties: Huron, Bruce, and Grey.