The Ontario Court of Appeal recently heard a mother’s appeal from a decision that granted the father a retroactive reduction in his child support obligations. In determining whether to allow the appeal, the court considered the interesting question of when a payor parent may be excused from paying the full amount of child support that they were ordered to pay.

The Parties’ Story

The parties were married in October 1983, separated in February 1994, and divorced in June 1996. They had two children, born in 1988 and 1989.

The parties’ divorce judgment from 1996 granted custody of the children to the mother. The father was ordered to pay child support in the amount of $115 per week per child, so long as they remained “children of the marriage” under the Divorce Act.

The father’s child support obligations terminated in 2012, when the children both completed post-secondary education and were employed. However, by then, significant child support arrears had accumulated.

The father brought a successful motion to retroactively vary child support, commencing May 1, 1997 (when the Federal Child Support Guidelines came into force). The motion judge recalculated the arrears and reduced them from approximately $170,000 to $41,642.

The mother appealed.

In a previous case, Gray v. Rizzi, the Ontario Court of Appeal set out the approach that must be followed when a party meets the threshold for a retroactive variation of support. Specifically, the court found that the following four factors should apply to applications to decrease support retroactively:

  • 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.

The court also endorsed the general rules from a Supreme Court of Canada case, D.B.S. v. S.R.G., that it will usually be inappropriate to make a support award retroactive to a date that was more than three years before formal notice was given.

Furthermore, the best interest of the child is the paramount issue when considering a request to retroactively reduce child support. The court also outlined that a current inability to pay will generally not result in a reduction in arrears, unless the payor can demonstrate that he or she cannot (and will not ever) be able to pay the arrears. That said, a change in circumstances while arrears were accumulating may allow for a retroactive decrease in the amount of child support owed.

Finally, the court must consider the following key factors when deciding whether to grant a request for retroactive relief:

  • 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’s Decision

In allowing the mother’s appeal and ordering the father to pay the full amount of his arrears, the court found that the motion judge erred in failing to apply the relevant legal principles. While the motion judge was correct to find that the enactment of the Guidelines amounted to a change in circumstances, he erred by continuing to conclude that the father was entitled “as of right” to a retroactive reduction extending years into the past without any consideration of the principles set out by the Supreme Court of Canada and Ontario Court of Appeal.

The court then applied the appropriate factors and found that the father was not entitled to a retroactive variation order more than three years from November 17, 2016, the date that he commenced his motion.

The court explained that:

The [father] has been, at best, a recalcitrant payor who over 23 years has made few support payments, particularly when he disappeared and was out of the country for 15 years. The [father] was underemployed and left the [mother] to carry alone the heavy responsibility of raising and supporting their two daughters. The [father] has placed a substantial financial burden on his family’s shoulders. His daughters have accumulated considerable debt in their pursuit of post-secondary education. Any alleged hardship arising from the substantial arrears that the [father] has permitted to accumulate results from his own blameworthy conduct.

The court went on to find that the father had not explained his failure to make support payments or his delay in proceeding with his application to vary, nor had he produced reliable evidence of his inability to pay while arrears were accumulating. The father also unreasonably failed to do anything to further his request to reduce his support obligations for 18 years, between 1998 and his motion in 2016.

Lessons Learned

When one party seeks to retroactively reduce child support, the court will consider the best interests of the child, among other factors. If you have questions about your child support obligations, it is wise to speak with an experienced lawyer. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at 1-844-769-0737, or contact us online to schedule an initial consultation.