Q. Effect of Remarriage or Unmarried Cohabitation with Third Party

Author:Julien D. Payne - Marilyn A. Payne

Page 504

See note 160

Variation of an order respecting children of the obligor’s first marriage is not necessarily warranted by an order for support respecting children of the obligor’s second marriage,161 although a court may recommend that both custodial parents be given notice of any future reconsideration of support for the children of either marriage and an opportunity afforded for them to participate so that the whole circumstances can be taken into account.162In the absence of a finding of undue hardship within the meaning of section 10 of the Federal Child Support Guidelines,163the fact that the obligor has remarried or lives in an unmarried cohabitational relationship is not a material change of circumstances that justifies variation of a prior order for child support. New obligations to a second family, standing alone, cannot be relied upon to avoid pre-existing child support obligations to the first family. The needs of the children cannot be relegated to second place behind the obligor’s present marital or family obligations.164The fact that the obligor’s household enjoys a lower standard of living than that in the recipient spouse’s household constitutes no basis for a finding of undue hardship within the meaning of section 10 of the Guidelines, where any hardship is attributable to the voluntary decisions of the obligor and his new wife.165

[160] As to the relevance of a new spouse’s income to the application of the Federal Child Support Guidelines, see Chapter 4, Section G(21).

[161] Meuser v. Meuser, [1998] B.C.J. No. 2808 (C.A.) (consent order respecting children of second marriage; potential application of s. 17(6.2) of the Divorce Act and "undue hardship" provisions of s. 10 of the Federal Child Support Guidelines referred to).

[162] Diminie v. Diminie, [1995] O.J. No. 59 (Gen. Div.).

[163] See Chapter 7, Section G.

[164] Baker v. Baker, [1999] B.C.J. No. 1605 (C.A.).

[165] Lalonde v. Bailey, [1999] B.C.J. No. 1342 (S.C.).

To continue reading