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Navigating the complexities of child support can be challenging, especially when a change in circumstances leads to an overpayment. While it might seem logical to seek a rescission of support arrears to account for the surplus, courts are clear that this is not an available remedy. A retroactive reduction in support, which addresses a past change in circumstances, is distinct from a request for rescission, which is reserved for cases of financial hardship and inability to pay. This distinction, as highlighted in the case of Longmire v. Longmire, is critical for anyone involved in a support dispute.
Father Continues to Pay Child Support for Daughter Residing With Him
Longmire v. Longmire involved an application for an interjurisdictional support variation under section 18.1(1) of the Divorce Act by the husband who lived in Nova Scotia. He sought to terminate a 2018 support order requiring him to pay child support for two children who lived with the mother in Ontario, which he was to pay until the children were no longer dependent, as defined within the Divorce Act. The parties were divorced in 2011; however, the father claimed that in January 2019, his daughter began to live with him full-time in Nova Scotia. At the time, she was nearly 15 years old, and he explained that he did not feel he could compel her to return to live with her mother. Nevertheless, in April 2019, he purchased a plane ticket for her return to Toronto; however, she refused to get on the plane.
The Supreme Court of Nova Scotia subsequently issued an order which confirmed that the daughter was habitually a resident of Ontario, that the mother had primary care, and that the daughter was to be immediately returned to the mother. Despite the order, the daughter did not return to Ontario. However, the father continued to pay the mother child support for the daughter until June 2021; by then, she had been living with him for nearly 30 months. The father claimed that the amount amounted to $19,561.55 in support while the daughter was solely in his care.
Father Seeks Rescission of Child Support Arrears
The judge first considered whether the daughter was still a dependent child of the marriage. Both parties agreed that the daughter was now living independently. There was also evidence that she was pursuing post-secondary education. Justice Mathen decided that the daughter had ceased to be a dependent child of the marriage and that the father’s support obligations concerning the daughter should be terminated. The more significant matter was whether the father’s child support arrears should be rescinded.
The judge assumed that as of January 1, 2020, there was a material change in circumstances, as the daughter was residing with the father. However, he was not seeking retroactive child support from the mother, and there was no evidence of what child support might have been ordered. Nevertheless, the judge was prepared to accept that the 2018 court order would not have required the father to pay the table amount of child support to the mother if the daughter had been primarily living with the father. But the key question was whether the father was entitled to a rescission of the arrears. He did not seek retroactive child support but instead sought an order that rescinded his current arrears of $6,160. Moreover, he was not looking for rescission due to any inability to pay, but rather as a remedy to his overpayment of child support that arose when the daughter began living with him.
Justice Mathen determined that the father’s request did not fall under the framework the Supreme Court of Canada developed in Colucci v. Colucci. That case dealt with requests for rescission of support based on a current inability to pay. In Colucci, the Court identified “three general types of variation”. These included the recipient seeking to increase support because of a past change in circumstances retroactively. A second category involved the payor seeking a retroactive decrease in support because of a past change in circumstances. The third option involved a payor who had fallen behind on payments and was looking to rescind or suspend arrears because of current and future inability to pay. Notably, this last category does not depend on changes in past circumstances.
Rescission Does Not Address an Overpayment of Support
In Colucci, the Court emphasized that the underlying court order “reflects the correct amount of child support owing,” except that the payor failed to make all payments as they came due entirely. Consequently, the payor is asking the court to forgive part of the shortfall because of their financial hardship, including when there is no change in circumstances that would justify a retroactive decrease in support. The Court also suggested that since rescission “wipes out a legally recognized debt,” it is usually only appropriate in “exceptional circumstances”.
Looking to Colucci, Justice Mathen noted that the case “says nothing about reducing arrears because of a separate support issue, such as overpayment”. Nevertheless, the judge found that the Supreme Court’s analysis of rescission was applicable in highlighting several principles, including:
- Child support arrears represent a debt by the payor.
- The debt must be repaid.
- Rescinding the arrears amounts to forgiving the debt, and therefore is reserved for exceptional cases.
- Courts should be mindful of and apply alternatives to rescission.
By adapting that framework to the current case, the judge concluded that the father improperly conflated arguments concerning ongoing child support with the argument relating to his child support arrears. Rather than conflating the arguments, Justice Mathen suggested that if the father believed he had overpaid child support, he needed to initiate a proceeding to seek repayment from the mother. But nothing supported the idea that he could obtain rescission of the arrears, since that remedy was “developed to address an entirely separate situation”. And there was not enough evidence before the court of the current hardship for the father to advance a request to rescind his arrears. The father had the burden of establishing that rescission was an appropriate remedy, and since he failed to do so, his request was dismissed.
Consider the Distinct Remedies When Preparing Your Claim
A court will not grant rescission as a remedy for a payor’s overpayment of child support, since rescission addresses the payor’s inability to pay. That framework cannot be used to resolve separate support issues, including any alleged overpayment. Parties must be mindful of this when preparing to bring their claims before a court.
Navigate Your Child Support Issues with Experienced Windsor Family Lawyers
Child support and spousal support issues can be complex, but you do not have to navigate them alone. The team at Johnson Miller Family Lawyers is dedicated to providing clear, valuable information and personalized guidance. We are here to help you understand your rights and chart a path forward. To discuss your unique circumstances and arrange a consultation, please fill out our online questionnaire or call us at 519.973.1500.
