When parents get divorced or separated, one parent may be obligated to pay child support to the other parent. Child support amounts are generally determined by the income of the payor and how much custody of the children they enjoy. Of course, even if a court orders a parent to pay child support, it does not necessarily follow that the parent will do so. When a parent fails to pay child support their amounts owed continue to build up, and measures can be taken to collect support from parties unwilling to pay. Parents unable to pay should always take appropriate measures to address this issue. But as we saw in a recent decision from the Court of Appeal for Ontario, not everybody follows that advice, leading to expensive lessons to learn.

Falling behind in child support

The mother and father were married on October 1, 1983. They had two daughters during their marriage (born in 1988 and 1989). They separated on February 23, 1994 and were divorced on June 14, 1996.

One of the outcomes of their divorce judgment was an order for the father to pay $115 per week in child support. His obligations continued until 2012, the year in which both children completed their post-secondary education and were no longer eligible to receive child support. However, the father did not make child support payments for long. His income began to decline in 1997. By April 1998 he asked the mother to consider a reduction in his child support. This request was refused by the mother, but the father did not commence a motion to change the order until November 17, 2016. He made few payments in the years in between.

The father spent 2001-2016 living in the United States and Italy. During this time he made few child support payments. He did not notify the mother or the Family Responsibility Office of his whereabouts. His arrears continued to climb, and he ultimately owed more than $170,000.

A motion to change

The father finally brought a motion to vary his child support on November 17, 2016, looking for a retroactive reduction. A motion judge ruled that the Federal Child Support Guidelines, would have allowed the father to reduce his child support obligations, stating “ “the (father) is entitled as of right to a variation and a calculation of support based on table amounts and his drop in income from employment.” As a result, his arrears were reduced to $41,642.

On appeal

The mother appealed, arguing the motion judge failed to apply the common law principles respecting retroactive child support variations, adding he also failed to apply the three-year rule set out in common law in which a retroactive request can be made.

The Ontario Court of Appeal had previously established the factors a court should apply in applications to reduce support retroactively. They are:

  • Whether there was a reasonable excuse as to why a variation in support was not sought earlier;
  • The conduct of the payor parent;
  • The circumstances of the child and;
  • Any hardship occasioned by a retroactive award.

Furthermore, the court referenced additional factors that had been introduced in previous decisions. They are:

  • The nature of the obligation to support, whether contractual, statutory or judicial;
  • The ongoing needs of the support recipient and the child;
  • Whether there is a reasonable excuse for the payor’s delay in applying for relief;
  • The ongoing financial capacity of the payor and, in particular, his or her ability to make payments towards the outstanding arrears;
  • The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he or she has cooperated with the support enforcement authorities, and whether he or she has complied with obligations and requests for financial disclosure from the support recipient;
  • Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears and;
  • Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears.

The court found that the motion judge had failed to apply any of these factors, including the three-year rule. The court ruled that “This was an erroneous approach and the motion judge’s reasons disclose a clear error in principle that justifies appellate intervention.”

The court also looked at the father’s behaviour, noting that he had lied about his finances in the past and made few support payments during the time he was supposed to be making them. He also failed to present any evidence that he had been unable to make payments. As a result, the court overturned the motion judge’s decision, leaving the father on the hook for over $170,000 in past-due child support.

To speak with an experienced Windsor lawyer about child custody or support, call 519.973.1500 or contact us online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors and other professionals.