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Parents have the responsibility to make child support payments to meet the child’s financial needs. When a payor falls behind in their payments, the accumulation of support arrears is detrimental to the child and can result in financial stress for the other parent. Yet, support payors may find themselves in situations where they cannot make payments and satisfy the outstanding arrears for child or spousal support. This can arise when the payor sustains an injury or has a health condition that may restrict their capacity to work and earn income. In these cases, the payor may seek to cancel their support arrears.
Arrears May be Cancelled in Exceptional Cases
There is a presumption in favour of enforcing support arrears. The arrears reflect an earlier support order that corresponds with the payor’s income and indicates the support that should have been paid. In Colucci v. Colucci, the Supreme Court of Canada characterized a payor’s claim for rescission “as a form of hardship application”. The Court warned that the rescission of arrears based on current financial incapacity “should not be ordered lightly” and “is a last resort in exceptional cases.”
Practically, the Court reasoned that this high standard “encourages payors to keep up with their support obligations rather than allowing arrears to accumulate in the hopes that the courts will grant relief.”
Payors Should Use Reasonable Efforts to Address Medical Limitations
The payor’s financial capacity is key to deciding whether to enforce support arrears. However, in support cases generally, courts have addressed how medical limitations impact earning capacity for the purposes of meeting support obligations. In Tyrrell v. Tyrrell, the applicant sought an order for temporary spousal support. His physician indicated that because of his current diagnosis, he was unable to manage sustained physical activity, including working in construction. However, as the judge noted, that did not mean that the applicant was unable to be employed altogether.
Instead of highlighting additional medical evidence, the applicant pointed to the fact that he qualified for the Ontario Disability Support Program (ODSP) as a further indication that he was disabled and unable to work. However, the judge explained that the receipt of ODSP payments or Workplace Safety and Insurance Board benefits is not proof of an inability to work for support purposes. Moreover, courts have held that judges cannot delegate the “complex determinations of employability and income earning capacity to unknown bureaucrats applying unknown evidence to unknown criteria”.
The Court noted that the applicant was “not making any efforts to contribute to his own support,” contrary to the Divorce Act, which “requires that each person contribute to his or her own support to the best of his or her ability.” The Court also noted that the applicant was employed until after the parties had separated. To conclude, the Court stated that the “applicant’s failure to provide sufficient medical evidence corroborating his inability to work due to medical issues and the fact that for the most part the disability, if it exists, arose after the separation means that his motion for temporary spousal support must fail.” Moreover, the Court found that “even if entitlement were established, on the respondent’s present income, she is unable to pay support as a result of her own properly documented medical issues.”
Payors Must Prove They Have a Reasonable Medical Excuse for Their Under-Employment
A detailed medical opinion should be provided by the payor to satisfy that they are unable to work. Additionally, the Court indicated that “support payors must use reasonable efforts to address whatever medical limitation they may have to earn income.”
Essentially, payors who claim they cannot work due to a medical condition need to establish that they have a reasonable medical excuse for their under-employment. Nevertheless, in Cole v. Freiwald, the Court indicated that support payors should use reasonable efforts to address their medical limitations to be able to earn an income. Even if a payor has health challenges that impact their earning capacity, courts can consider the extent of any limitations and whether the party might be able to work in less demanding roles or on a part-time basis.
There is High Threshold for Rescission of Arrears due to Financial Incapacity
A support payor cannot simply rely on their health condition to allege that they cannot work and pay any accumulated arrears. Courts have held that the rescission of arrears requires a high threshold and that it should be limited to exceptional cases. Courts will consider the hardship to the parties, but they will not just consider the payor’s current inability to pay but also the future ability to pay the arrears.
Contact Johnson Miller Family Lawyers in Windsor for Practical Advice on Support Matters
At Johnson Miller Family Lawyers, our experienced team of family law lawyers understands the complexities that can arise following a separation or divorce. When it comes to matters involving support obligations, speak with an experienced Windsor divorce lawyer. Call 519.973.1500, or contact us online to arrange a meeting.
