When parents get divorced or separated, it’s not uncommon for one parent to have a child support obligation, which means they have to pay the other parent a pre-determined portion of their income on a monthly basis in order to assist with the cost of raising their children. If child support is not paid, the obligation to make payments does not disappear. Instead, the parent is noted as being in arrears, and the amount of missed support will continue to build. In a recent decision from the Supreme Court of Canada, the nation’s highest court looked at a situation where a parent was $170,000 in arrears and asked for a reduction.

Father fails to pay child support

The mother and father were married in 1983 and divorced in 1996. The mother was granted sole custody of their two daughters, and the father was owed to pay $115 per week in child support. Two years later the father asked for a reduction in support but offered no explanation or supporting documents to explain why he needed a reduction.

The father paid no voluntary child support from 1998-2016, and the court said that only limited sums were collected through enforcement mechanisms. The father was also absent from the children’s lives in every other way, and his whereabouts were unknown.

In 2016 the father applied to have a retroactive reduction in child support, and asked for $170,000 of what he was owed to be forgiven.

At trial, the court granted the father a reduction, setting the arrears owing at $41,642. This was done to bring the support obligations down to what he would have paid under the Federal Child Support Guidelines with his reported drop in income over those years. This decision was overturned on appeal before it made its way to the Supreme Court.

Supreme Court of Canada Dismisses Appeal

The court began its analysis stating that courts have a wide discretionary power when it comes to varying child support orders. Courts should take three considerations into account in order to arrive at a fair position. They are:

  1. The child’s interest in receiving the appropriate amount of support
  2. The interest of the parties and the child in certainty and predictability
  3. The need for flexibility to ensure a just result in light of fluctuations in the payor’s income.

The court then went on to explain the importance for the parents, particularly the parent who should be paying support, to take part in full financial disclosure. This is needed in order to allow the parties to stand on equal footing.

While a significant change in income can be cause for a variation in support, the party requesting it must provide documentation to support their position. This is something the father failed to do.

Even if the father had provided documentation, the court said that retroactivity is presumed to extend no further than three years before the date of formal notice. While this is a general rule, courts can depart from it. But in this case, the court stated the father’s failure to fulfill his obligations amounted to bad faith efforts to evade the enforcement of a court order and denied his request, meaning he has to pay every penny he owed.

Contact the family lawyers at NULaw early in your separation to understand your rights and obtain the best possible child support arrangement for your children. Our firm and its forerunners have been advising clients on child support and other family law matters since 1953. We remain committed to upholding the principles established by our distinguished predecessors: combining big firm results with a small firm relationship, and an overall commitment to always put our clients’ best interests first. Contact us online or at 416-481-5604 to book a consultation.

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