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An Ontario judge recently ordered that a father pay almost $25,000 for failing to disclose relevant financial information in a child support dispute within a reasonable period of time.
What Happened?
The former couple met in 1981 when they were both 19 years old, and were in a common-law relationship for approximately four years, resulting in one child (Alice- now 33 years old).
The father filed a motion to terminate his child support obligations towards Alice, and to rescind arrears (i.e- unpaid child support) that accumulated since the parties had agreed to a previous court order made over 25 years ago. The arrears totalled more than $200,000.
The mother asked the court to find the father in contempt for failing to disclose relevant documents, and requested that the court impose a penalty and to strike out the father’s pleadings (i.e- his request to terminate the child support payments).
Unpaid Child Support
In 1989, the parties signed an agreement stating that:
- The mother would have custody of Alice, with the father having access on alternate weekends;
- The father was to pay $350 a month in child support, until Alice either turned 18 and stopped going to school full-time, turned 23 years old, got married, or died;
- The support would increase per the inflation rate;
- The father was to maintain life insurance of at least $50,000 and designate Alice as the irrevocable beneficiary, with the mother as trustee.
The mother moved out of Ontario in 1993, and did not return until 1999.
In 2014, the Ministry of Community and Social Services informed the father that he had accumulated more than $72,000 in unpaid child support, with interest of over $129,000, which meant that he owed more than $200,000 as of that date.
The father filed the motion requesting that the unpaid child support be reduced, arguing that:
- the mother had breached the access terms of the agreement by leaving the country with the child without notice to him, and without providing a forwarding address or contact information;
- the mother had “made a deliberate choice to raise Alice without his support in order to “deprive him of access”;
- Alice was now over 30 years old and would not benefit in any way from a “windfall of support” payable to the mother;
- he is of “modest means” since he raised other children in his home when Alice was out of the country;
- the 14% interest charged on the arrears is excessive.
The mother argued that:
- she did not tell the father that she was leaving Ontario because he had seen Alice in the four years following their separation, and had not provided any information about his own whereabouts;
- she had struggled to raise Alice without any financial assistance from the father, and continues to struggle with paying for Alice’s education;
- it would be “unconscionable” to allow the father to “shirk his responsibilities” towards Alice.
The mother requested that the arrears be paid off at a rate of $1,334 per month until they were fully paid.
Failure to Provide Documents: Father Found to be in Contempt
In June 2015, the parties were ordered to exchange relevant financial information. The father failed to comply with this order and the mother subsequently filed a motion requesting the father be found in contempt.
In December 2015, the father was found to be in contempt of the order to provide documents. The father was additionally ordered to pay $100 a day until the order was fully complied with. The contempt finding had no effect on the father, who continued to fail to provide the relevant documents.
In August 2016, the mother sought enforcement of the orders to pay, and requested that the father’s pleadings be struck. The court was required to determine whether the father had breached the orders, and, if so, what penalty should be imposed.
The Court’s Findings
The Judge found that the father’s failure to make financial disclosure negatively affected the mother through impacting her ability to establish her right to retroactive support and forcing her to incur unnecessary costs. In addition, the father’s failure to comply with a court order undermined the integrity and effectiveness of such orders.
Disputes over support obligations require both parties to comply with their disclosure obligations, since both the Family Law Act and the Federal Child Support Guidelines both require the court to make determinations about a person’s income based on their tax information, but the Income Tax Act does not permit a court to obtain that information directly from Canada Revenue. Courts are therefore entirely reliant upon the cooperation of both parties to the dispute in order to be able to come to a conclusion.
The Judge noted that while he has jurisdiction to strike out a party’s pleadings under Rule 14(23) of the Family Law Rules, this would be inappropriate in the unusual circumstances of this case (since the matter would be going to trial). In lieu of striking the father’s pleadings, the Judge ordered the father to pay the penalty that had accrued ($24,900) within 30 days. If the father continued to fail to provide disclosure beyond that date, the mother could, once again, make a request to strike the father’s pleadings. The Judge concluded:
If [the father] avoids accountability for not complying with his disclosure obligations, on grounds of his impecuniosity, he should not be permitted to proceed with his motion. It would be unfair to require [the mother] to face a contested motion by [the father] if he fails to pay the penalty for failing to comply with the rules which the court imposes on any litigant seeking to obtain a variation of its previous final order.
Lessons Learned
As the court noted in this case, successful and expedient resolution of family law disputes requires the cooperation of both parties. Since courts are unable to obtain certain critical information independently, such as financial information in the event of a support dispute, a matter will not move forward unless both parties comply with their obligations. Delays in resolving disputes can make an already lengthy process even longer and more expensive, and ultimately works to the detriment of both sides.
If you have questions about your child support, spousal support, or other obligations, the experienced and knowledgeable family law lawyers at Gelman & Associates can help. With six offices across downtown Toronto, Barrie, Aurora, Mississauga, North York and Scarborough, we are easily accessible. In addition, our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.
