Child support refers to the amount of money one parent pays to the other parent to assist in the payment of the costs of caring for a child. Child support issues can become very complicated, so it is essential to obtain legal advice from a family lawyer with extensive experience with these matters.
The recent case of Woodland v Kirkham in the Ontario Superior Court of Justice demonstrates the complexity that can be involved with child support disputes. As the applicant mother sought retroactive child support for a long period of time, the case was complicated by the respondent father’s refusal to take a DNA paternity test and his residence on the other side of the globe.
The mother, a nursing student, met the father, an Australian orthopedic surgeon, on a night out to celebrate her brother’s 19th birthday. They had unprotected sex and 269 days later, the mother gave birth to a child in Eastern Ontario. She indicated that she did not have sexual relations with anyone else until after she discovered she was pregnant.
She eventually tracked down the father’s contact information and notified him of the child. After the initial call ended amicably, he later became confrontational. The mother tried to negotiate child support when the child, who has learning difficulties, was an infant and again when he was four years old. In October 2009, she retained a lawyer.
In 2017, the mother commenced an application to recover child support for the now-adult child. In 2018, she sought and obtained an order for DNA paternity testing to be undertaken in Australia. Shortly after, the mother consented to the father’s financial statements remaining sealed while the testing was completed.
The father brought a motion for leave to appeal against the paternity testing order, which was denied. The mother sought and obtained an order for the financial statement to be unsealed. The father unsuccessfully sought leave to appeal this decision as well.
After failing to comply with a further order of financial disclosure, his pleadings were struck out. He was represented by legal counsel until November 2020 and did not appear at the trial.
Justice Malcolm was very critical of the father’s delay tactics, noting:
The applicant and [the child] have suffered considerably due to the respondent’s success in delaying the progress of this application by refusing to cooperate with orders for DNA testing and financial disclosure, and by bringing two unsuccessful motions to appeal.
According to section 17.2(4) of the Children’s Law Reform Act 1990, an adverse inference can be drawn from the respondent’s failure to comply with the order for leave to obtain paternity testing.
Justice Malcolm decided that none of the father’s reasons provided an adequate explanation for his refusal to cooperate with DNA paternity testing. Her Honour made an adverse inference but found that the mother had proven that the respondent was the father in any event due to the credible nature of her evidence.
Her Honour was critical of the father’s unwillingness to take a paternity test:
If the respondent had cooperated with DNA testing in 2009, the court attendances may not have been necessary, and he would have had scientific proof of paternity. The child likely would have had a very different life. It is in a child’s best interests to be fully supported by all parents, and without acknowledgment, declaration or finding of parentage, a child may not be adequately financially supported. Child support is the right of the child. Mistakes of the parents should not be owned by the child.
Justice Malcolm determined that the income disclosed by the father did not fairly reflect what was available to him and therefore imputed income under section 19(1) of the Child Support Guidelines. Her Honour used reported income for two particular years, adjusted for income tax and exchange rates, to calculate child support payments from the date of the mother’s application in 2017.
Her Honour held that the child was entitled to be supported as he resides in the care of the applicant and is completing high school. Given the child’s learning difficulties, he was entitled to support even though he is not in full-time school and is over the age of majority.
The mother also sought retroactive support from the date she retained a lawyer to negotiate with the father. She did not seek child support from the date of the two earlier requests.
Justice Malcolm considered four factors relevant in determining whether to make a retroactive child support order – the reason why support was not sought earlier, the conduct of the payor parent, the circumstances (both past and current) of the child, and potential hardship on the payor parent flowing from a retroactive award.
Although it normally isn’t appropriate to make a support award retroactive to a date more than three years before formal notice is given, her Honour decided that in this case, it was appropriate for support to be paid from 2009. The delay had been reasonably explained, the father engaged in blameworthy conduct and the child had suffered deprivation.
Her Honour bluntly concluded:
The juxtaposition of the respondent selling a four-million-dollar home and [the child] not having access to food, clothing, shoes or bedding when required is startling.
Due to the potential for child support issues to become complicated, it is essential to obtain legal advice early in your separation process from a family law lawyer with extensive experience with these matters. NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters including child support. Contact us online or at 416-481-5604 to book a consultation.