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Self-Reporting Your Income: How to Go Wrong

Canada Revenue Agency Warning Sign, A Canadian road warning sign with words Canada Revenue Agency with a sky background

Self-Reporting Your Income: How to Go Wrong

If you are a separated or divorced parent and also self-employed, then you likely know of your legal obligation to report your income so that any child support obligations (or entitlements) can be determined under the federal Child Support Guidelines (the “Guidelines”).

This can be more complicated than you may think. Because unlike those who receive a straight salary, if you earn your living through self-employment, or if you are paid through a corporation, then the calculation of your income can fluctuate greatly from year to year. It may also require some crystal ball-gazing, and be driven by numerous esoteric variables and discretionary business-decisions.

Not surprisingly, when family disputes involving one or more self-employed parents end up in court, the judge is authorized to closely scrutinize your self-reported income to fix the true amount. As part of this exercise, the Guidelines allow the judge to “add back” or impute income to your declared income in certain cases. These include situations where you:

• Are intentionally unemployed or under-employed;

• Divert income;

• Unreasonably under-use property that could be used to generate income;

• Fail to produce income information when legally required to do so;

• Deduct an unreasonably high amount of expenses from income (and this is not solely governed by whether the deduction is permitted under the Income Tax Act); and

• The beneficiary under a trust.
(The Guidelines also allow the court to impute income to you in certain defined tax scenarios).

Needless to say, there is a lot of gray-area in that list; for example, in a small corporation or single-person business you may have a lot of leeway in determining the amount of expenses that you deduct from income. Essentially, it is an “executive decision” in the colloquial sense, highly dependent on factors unique to your specific self-employment arrangement, and may vary from year to year as business needs and economic factors dictate.

In fact, the over-generous deduction of business expenses is the area where most self-employed parents trip up in reporting their total income for child support purposes. Here are just a few of the ways that you can go wrong in reporting income:

• By trying to deduct business expenses for what are actually recreational purposes. For example, in a case called Dunham v. Dunham the court added back 100 percent of the amount that the self-employed spouse had tried to claim for gasoline and oil expenses relating to a snowmobile and an airplane.

• By being over-generous in deducting expenses for items that have a dual purpose. For example, in A. (A.) v. A. (C.) the court disallowed certain capital cost allowance deduction in relation to a $60,000 truck and a computer, because they were used by the father (who was a private investigator) for both personal and business-related purposes).

• By hiding behind your accounting professional in justification of various decisions made in coming up with an income amount;

Note the following:

• Just because the deduction is allowed by the Canada Revenue Agency (CRA) does not mean it will be allowed for Guideline support and income-determination purposes.

• On the flip-side, if the deduction clearly disallowed by the CRA, then it will also be disallowed under the Guidelines when calculating income.

• The fact that a deduction may have survived a CRA audit does not mean that for child support purposes the deductions will not be added back by the court if warranted. Family courts have a great deal of discretion in this area.

For the full text of the decisions, see:

Dunham v. Dunham, 1998 CarswellOnt 4571 (Ont. Gen. Div.)

A. (A.) v. A. (C.), 2012 CarswellBC 3001 (B.C. S.C.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offerig pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Enforcement of Child Support in Ontario – video

 

Wednesday’s Video Clip: Enforcement of Child Support in Ontario

In this legal video we review enforcement in Ontario is done through a provincial government office called the Family Responsibility Office (FRO). The court automatically files all support orders made after July 1, 1987 with the FRO. Separation agreements can also be filed there if they have been filed with the court and then mailed to the FRO.

The parent who is to pay support is told to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the parent with custody, or deposits the money directly into that parent’s bank account. It only does this after it has received the money from the paying parent.

If a payment is missed, the FRO takes action to enforce the order or agreement. To do this, the FRO needs as much up-to-date information about the paying parent as possible. This includes his or her full name, address, social insurance number, place of employment or business, income, and any property he or she owns. The information about the paying parent goes on a Support Deduction Information Form which is available at the court. This form is given to the FRO along with the support order or agreement. It is important to update this form whenever the information changes.

The FRO uses different ways to get the payments that are owed. It can:

• get the payments directly from the parent who is supposed to pay support

• have the payments automatically deducted from the parent’s wages or other income (other income includes things like sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay, and pensions)

• register a charge (a lien) against the personal property or real estate of a parent who fails to pay the support that he or she owes

• garnish (take money from) the bank account of a parent who fails to pay support

• garnish up to 50% of a joint bank account that he or she has with someone else, or

• make an order against another person who is helping a parent hide or shelter income or assets that should go toward support

The FRO can put more pressure on parents who do not make their support payments by:

• suspending their driver’s licences

• reporting them to the credit bureau so that it will be difficult for them to get loans, or

• canceling their passports.

Once the order or agreement is filed with the FRO, then it is the FRO, not the other parent, that is responsible for any actions taken to enforce it.
Sometimes parents receiving support withdraw from the FRO because it is easier to receive payments directly from the other parent. But if problems arise later, and they want to re-file with the FRO, they might have to pay a fee to do this.

Parents who have an obligation to pay support should also know that the FRO cannot change the amount that the order or agreement says they have to pay. If they think that a change in their financial situation justifies a reduction in the amount of support they should pay, they must get a new agreement or go to court to get the support order changed.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Appeal Court Confirms: Dishonest Husband Required to Show “Scrupulous Care” for Wife’s Interests

care

Appeal Court Confirms: Dishonest Husband Required to Show “Scrupulous Care” for Wife’s Interests

Consider this scenario: Two spouses divorce after 20 years of marriage and three children. They enter into a separation agreement to establish the combined child and spousal support the husband should pay, and agree that a home they purchase after separation would be taken in the wife’s name alone.

However, in 2005 they decide to enter into an Amending Agreement: Among other things, it adjusts the support amount to reflect the husband’s declared income of $80,000 per year, and changes the split on the home’s ownership to 50-50 for each of them (with the title documents amended accordingly).

Years later, the wife later finds out that the husband’s income was not $80.000 as he claimed, but rather closer to $345,000. The vast majority of that income came from various contracting / home building businesses that the husband owned, which generated significant unreported income about which the Canada Revenue Agency was unaware.

The wife then asks the court to set aside the Amending Agreement as unconscionable, and to declare her the sole owner of the property. This is based mainly on the husband’s untruthfulness about his true income. In response, the husband complains that the wife should have raised her objections sooner in their proceedings, and that she should be barred from raising them now.

The questions for the court was this: Should the Amending Agreement be aside in these circumstances?
Not surprisingly, two different courts’ answer was a resounding “yes”. But what was interesting is that both courts concluded that the husband had a duty to act with “scrupulous care for [the wife’s] welfare and interests” in the circumstances.

The matter first came before an applications judge who found that the wife would not have signed the second agreement had she known of the husband’s true income. That judge set aside the agreement and declared her to be the sole owner of the home.

In doing so, the judge found there had been inequality between the parties and that the husband was preying on the wife, especially in light of her economic vulnerability. As such, he had a duty to act with her best interests in mind, and – as the later Appeal Court confirmed – his “failure to disclose that his income was roughly four times that which he represented it to be was a serious breach of that duty.”

There was no doubt on the evidence that the husband misrepresented his income as being $80,000, when in fact he had significant additional undeclared income. The wife did not find out about it until long after she began the court proceedings, so it did not lie in the father’s mouth to she should have raised it earlier in the proceedings.

Also, the Court of Appeal found no fault in the prior judge’s assessment that the Amending Agreement was unconscionable in law, based on both the husband’s non-disclosure of significant income, as well as the manner in which the parties purported to deal with their real estate. Although the concept of “unconscionability” in the context of domestic contracts is not the same as for regular contracts, one principle remains the same: where there are circumstances of oppression, pressure, or other vulnerabilities, and where there is evidence that one party exploits those vulnerabilities during the negotiation process to the point that the domestic contract deviates substantially from what the relevant family legislation would otherwise dictate, the contract need not be enforced.
The Amending Agreement was therefore set aside and the wife was declared the sole owner of the property.

For the full text of the decision, see:

Tadayon v. Mohtashami, 2015 ONCA 777 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Did Traditional Dowry Gift from Groom’s Family Come with Conditions?

dowry

Did Traditional Dowry Gift from Groom’s Family Come with Conditions?

In the interesting recent case called Abdollahpour v. Banifatemi the Ontario Court of Appeal was asked to examine the interplay between Canadian family law on one hand, and traditional Iranian marriage traditions on the other.

The facts involved a young Iranian couple who were married in Ottawa in 2012. As was the custom in the Iranian culture and tradition, the groom’s family had provided the bride with a dowry (known as a “Mahr”) on the occasion of the wedding. In this case, the Mahr was comprised of a 50% interest in a home that the groom’s parents owned.

About a year after the wedding, the bride decided to move out and the couple formally separated. The groom’s parents asked for the 50% interest in the home back, arguing that it had been a conditional gift, with the condition being that the bride not leave the marriage.

On a motion for summary judgment, the bride succeeded in obtaining an order that she keep the 50% interest in the property, with the court finding that had been an irrevocable and unconditional gift from the groom’s parents.

When the groom and his parents appealed, they sought to introduce fresh evidence in the form of a translated copy of the marriage contract, which expressly listed the 50% interest in the home as being part of the Mahr. They also brought a report by a scholar who was an expert on the Islamic traditions, which confirmed that in certain circumstances the Mahr is to be returned by the wife in the event the marriage breaks down. The expert also gave an opinion as to what he thought the couples intended at the time of the transfer.

The Ontario Court of Appeal dismissed the appeal and confirmed that the bride could keep the 50% interest in the home. The Court drew a narrow but important distinction between what the expert could and could not give an opinion on, writing:

The issue is not whether Iranian culture or tradition features the characteristics explained by the expert, but whether the parties agreed to the transfer being subject to the conditions imposed by that culture or tradition. An expert cannot give an opinion as to what the parties’ intentions were – the very issue the motion judge had to decide – which is what the proposed expert purported to do here.

Also, applying the well-established legal test for what constitutes a “gift”, the Appeal Court also confirmed the motion court’s earlier ruling that the transfer of the 50% interest in the property was an irrevocable, unconditional gift. Based on the correspondence, negotiations and discussions between the various parties and their respective lawyers, it was clear that the interest in the home was intended to be a gift; it was also clear from the Deed of Gift itself, which had been prepared in order eliminate uncertainty. It made no mention of their being conditions attached.

The appeal was accordingly dismissed; the bride was entitled to keep the 50% interest in the home belonging to the groom’s family.

For the full text of the decision, see:

Abdollahpour v. Banifatemi, 2015 ONCA 834 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

The Difference Between Separation and Divorce in Ontario – video

Wednesday’s Video Clip: The Difference Between Separation and Divorce in Ontario

A separation occurs when one or both spouses decide to live apart with the intention of not living together again. Once you are separated, you may need to discuss custody, access and child support with your spouse. You may also need to work out issues dealing with spousal support and property. You can resolve these issues in different ways:

• You can negotiate a separation agreement. A separation agreement is a legal document signed by both spouses which details the arrangements on which you have agreed. In some jurisdictions, independent legal advice is required to make the document legally binding.

• You can make an application to the court to set up custody, access, support and property arrangements under the provincial or territorial laws that apply to you.

• You can come to an informal agreement with your spouse. However, if one party decides not to honour the agreement, you will have no legal protection.

To legally end your marriage, you need a divorce, which is an order signed by a judge under the federal law called the Divorce Act.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Spousal Support Advisory Guidelines Are Now an Even Handier Tool

tool

Spousal Support Advisory Guidelines Are Now an Even Handier Tool

We have written before about the role of the Spousal Support Advisory Guidelines (SSAG), which are designed to provide guidance and inject some certainty into the court’s task of setting spousal support levels between former spouses in certain prescribed scenarios.

But since they are only “advisory” (rather than mandatory) in nature, questions sometimes arise as to when courts should use them, when they can or should deviate from them, and under what support-adjudicating circumstances can they be referred to by courts in the first place.

Assuming at the outset that the facts of a case potentially fall within the purview of scenarios that the SSAGs were drafted to cover, the answer to the last question – broadly stated – is “anytime”.

This was not always the case under Ontario law. When first introduced in draft form in 2008, they were arguably designed to apply only to initial (first-time) spousal support applications, but not to review situations were the spouses returned to court subsequently to have an existing order varied. This conclusion was fortified by a 2008 ruling by the Ontario Court of Appeal in a case called Fisher v. Fisher (And it should be noted that the Court drew these conclusions about the non-applicability of the SSAGs despite the fact that the issue was not really germane to the case before it).

Relying on that Court of Appeal ruling in Fisher, subsequent courts had been reluctant to apply the SSAGs to anything other than initial applications. However, that strict stance was loosened over the years, most notably in 2014 decision – ironically also by the Court of Appeal – in which the SSAG’s purview was expanded to review applications as well.

In Gray v. Gray, the Appeal Court was asked to consider whether an earlier trial judge had made a reversible error in failing to consider the SSAGs while deciding the wife’s review application. In doing so, it observed that Fisher had been decided at a time when the SSAGs were not yet in finalized form. Since then there had been a final version released which expressly addressed certain variation scenarios; there was also a body of case law that involved SSAG-guided review.

(For example, in one such case called Abernathy v. Peacock, the recipient mother had been initially awarded considerably less spousal support than that to which she was otherwise entitled, in order to leave the paying father more money with which to pay child support. When her spousal support entitlements later came up for review, the court concluded that the SSAGs were an appropriate benchmark, given that they were being used to adjust support amounts that may very well have been awarded in the first place).

Collectively, on both initial applications and review scenarios it was clear to the Appeal Court in Gray that the SSAGs were to be considered a “valuable tool for courts to use in assessing a reasonable amount of spousal support”, and that they should be “routinely consulted”.

Although the Court thus confirmed the SSAG’s applicability to review applications, it cautioned that they should not be applied “wholesale”. Rather – and since they still remain only advisory in nature – family courts were to first consider complicating factors such as situations where one or both divorced spouses have second families, or where the paying spouse has enjoyed a post-separation increase in income. In such cases, according to the Ontario Court of Appeal, a court “must conduct an analysis of the facts of the specific case to assess whether the SSAG ranges are appropriate.”

What all of this means is that spouses who are contemplating separation and divorce can look to the SSAGs as a trustworthy starting point or “baseline” for discussions around spousal support amounts – no matter what the stage of the proceedings between them. Although the SSAG-set amounts are not carved in stone, they can provide a little bit of certainty to a sometimes-uncertain process.

For the full text of the decisions, see:

Fisher v. Fisher, 2008 ONCA 11 (CanLII)

Abernethy v. Peacock, 2012 ONCJ 145, [2012] O. J. No. 1203; 2012 ONCJ 145 (CanLII) add’l reasons 2013 ONSC 2045 (CanLII)

Gray v. Gray, 2014 ONCA 659 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Should This Homeowners’ Insurance Policy Indemnify a Bully’s Parents?

fly happy family on blue sky

fly happy family on blue sky

Should This Homeowners’ Insurance Policy Indemnify a Bully’s Parents?

Bullying between kids is a hot topic lately. Public dialogue usually focuses on prevention; however it can (and should) also touch upon the related issues of whether parents should be accountable for their kids’ behaviour, and whether they should be vicariously liable from a legal standpoint.

A recent Ontario case takes this inquiry one step farther – by delving into the question of whether an insurer under a homeowners’ policy should be required to defend parents who are later sued for the harm arising from the bullying child’s conduct.

The facts were these: A grade 8 girl, together with two of her classmates, had bullied, threatened and physically assaulted a fellow student, causing her physical and psychological harm. The parents of the bully were sued in civil court for negligently failing to control their daughter, and for failing to investigate and prevent the bullying she had perpetrated.

The bully’s parents held a homeowners’ insurance policy that provided coverage in cases where their personal acts caused unintentional injury or property damage. Relying on that policy, the parents asked the insurer to defend them in the civil action they were facing, and to indemnify them against any successful claims.

The insurer refused, relying mainly on two exclusion clauses in the policy, including one that excluded coverage if the parents “[failed] to take steps to prevent sexual, physical, psychological or emotional abuse, molestation or harassment or corporal punishment” by “any other person at [their] direction”.

The resulting dispute between the insurer and the bully’s parents was brought before an application judge, who held that the coverage exclusion predicated on the parents’ “failure to take steps” did not specify whether that failure needed to be intentional. Since there was a legal principle that exclusion clauses were to be interpreted narrowly, and since the ambiguity was to inure to the benefit of the parents in the role of the insured, the court found the insurer could not rely on the exclusion in this case. Rather, it was obliged to defend and indemnify the bully’s parents.

On subsequent appeal, the insurer prevailed: It was found exempt from having to defend the parents in court and from indemnifying them in the event that any of the underlying legal claims arising from their daughter’s bullying conduct were successful.

The Appeal Court reasoned that from a legal standpoint, both the exclusion clause in the policy and the various Statements of Claim in the civil actions faced by the parents used the same sort of language that referred to negligence: it referred to a “failure” by the parents to do certain things or take certain steps to prevent harm. The legal claims against the bully’s parents were clearly-worded, and fell squarely within the category of claims for which the insurer had created clear exemptions in the policy.
This meant that the parents – if eventually found to have been negligent – will remain personally on the hook for damages arising from their daughter’s bullying. They were also ordered to pay the insurer’s appeal costs amounting to $15,000.

For the full text of the decision, see:

D.E. v. Unifund Assurance Co. [2015] ONCA 423

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Child Support & Access Rights in Ontario – video

 
 

Wednesday’s Video Clip: Child Support & Access Rights in Ontario

In this video we review child support in relationship to access rights. A parent cannot cut off contact to a child simply because child support is not being paid.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Evidence 101: The Fine Line Between “Evidence” and “Submissions” in Family Law

submissions

Evidence 101: The Fine Line Between “Evidence” and “Submissions” in Family Law

A recent decision in Mwanri v. Mwanri raised a narrow – but important – legal point: When lawyers make submissions in family court, these are simply that: submissions, assertions, or stated positions on behalf of one of the parties. They are not tantamount to “evidence” that a court can consider in making its decision, and it is an error for a court to apprehend them that way.

In Mwanri v. Mwanri the parents were involved in a custody dispute over their two children. By way of a court order the father had been granted sole custody of an older son, while the mother had been granted sole custody of their daughter. But despite that earlier order, in 2014 the daughter decided to go live with the father. Seeking to formalize that new arrangement, the father brought a court motion to vary the original custody order as well as his related child support obligations.

At the motion hearing the evidence included the results of interviews with the daughter conducted by the Office of the Children’s Lawyer (OCL), which had become involved in order to monitor the existing parenting and access schedule. Based on those OCL interviews, together with some evidence from the mother, the motion judge rejected the father’s motion, ruling that he had actually influenced the daughter to move out of the mother’s home and to move in with him instead. That adverse finding was exacerbated by the motion judge’s conclusion, in connection with certain prior directives, that the father’s conduct “amount[ed] to a failure to comply fully with the existing court orders, if not outright contempt of them”.

By way of an appeal launched by the father, the Ontario Court of Appeal was asked to review the motion judge’s conclusions for errors.

First of all, the Appeal Court pointed out that the mother had given sworn evidence that supported the motion judge’s finding that the father had influenced the daughter’s decision to change her place of residence. So the motion judge’s reliance on that evidence was warranted.

However, the Appeal Court added, “The motions judge’s reference to the OCL’s interviews with the daughter is a different matter.”

The motion judge had never been given an actual report or other evidence from the OCL, so were no formal documents tendered. Rather, the motion judge had merely drawn conclusions based on the oral submissions by the OCL’s lawyer to the effect that the OCL interviews showed the father’s attempts to influence the daughter to move and disobey the existing orders. This, the Court of Appeal found, was a mistake on the motion judge’s part. As the Appeal Court put it:

Submissions by counsel are not evidence. They are simply submissions and nothing more.

(Still, nothing ultimately turned on that particular finding of error, since there was also credible and sufficient evidence from the mother – which the motion judge had believed – that the father had influenced the daughter).

The Appeal Court also rejected the father’s notion that he had technically been accused by the motion judge of being in contempt, even while it confirmed that he had indeed failed to comply with certain aspects of the earlier order, including the directive to pay legal costs.

Those two aspects of the father’s appeal were accordingly dismissed (although he succeeded on some of the other numerous grounds of appeal that he had raised in connection with support, custody and other related issues arising from the initial order).

For the full text of the decision, see:

Mwanri v. Mwanri, 2015 CarswellOnt 18511, 2015 ONCA 843

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

To Get Retroactive Support, Does a Kid Have to be Eligible at Now … or Only Back Then?

SCC

To Get Retroactive Support, Does a Kid Have to be Eligible at Now … or Only Back Then?

A recent Ontario case highlights an interesting “timing” conundrum in Family Law: when a parent applies for retroactive child support, does it matter that the child over 18 when the application is made? Or does that make the child ineligible for support?

And what if it’s a motion to retroactively change existing support levels?

The law on this point was canvassed in the recent case of P.M.B. v. A.R.C.-A. The mother wanted support to cover a period when the child was 18 and attending school full-time. However, on the date of her application, the child was 19 and no longer attending school. She asked the court to order child support that was retroactive (i.e. effectively “back-dated”) to cover the child’s eligible period.

In considering that claim, the court resorted to the principles set out in a well-known Supreme Court of Canada decision in D.B.S. v. S.R.G., where the court set out the factors that family courts should take into account in detailing with such retroactive applications.

That higher Court had confirmed the general principle (known as the “D.B.S. rule”), that a claim for retroactive support cannot be made unless the child is eligible for support at the time the application is made. As the court in P.M.B. v. A.R.C.-A. put it: “Child support is for children of the marriage, not adults who used to have that status.”

(But this principle comes with a caveat, because the standards and thresholds for what makes a child eligible for support are slightly different under the provincial Family Law Act versus the federal Divorce Act. Also, other established factors that need to be examined, such as the reason for the parent’s delay in applying, the conduct of the paying parent, the circumstances of the child, and the hardship that such an award may entail. In short: Child support eligibility is a complicated legal issue).

However – as with all rules – there are some exceptions. The D.B.S. rule will usually be found not to apply in cases where:

• There is an existing order in place (and an established support obligation under either the Divorce Act or the Family Law Act) and a motion is being brought to change it retroactively;

• A party has engaged in blameworthy conduct (for example where the support recipients have been thwarted or blocked from pursuing a motion to vary support because of some misconduct by the paying parent); or

• The paying parent has failed to disclose income increases to the recipient parent, in a manner that the court considers blameworthy.

Ultimately, and after considering all of these principles, the court in P.M.B. v. A.R.C.-A. decided to stray from the usual D.B.S. rule, for various circumstantial reasons. These included: a) the existence of an oral agreement for child support; b) the fact that two of the three children were still under age and eligible for support when the retroactive support order was being made; and c) because the father had been fully aware of his support obligation – and the fact that he was not meeting it – all along.

For the full text of the decision, see:

P.M.B. v. A.R.C.-A., 2015 ONCJ 720 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com