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Does Mother Who is on Bail Get Reduced Child Support?

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Does Mother Who is on Bail Get Reduced Child Support?

In this recent case, the Appeal court began its judgment this way:

Marital separation and divorce is typically a traumatic event for the family. But it usually gets better over time. That is not the outcome in the case at bar.

The court described a history of acrimony between the parents, who had been married for 8 years when they separated. After much dispute and legal wrangling, they agreed that the father would pay a certain amount of child support per month.

However, in 2010 the mother and her new boyfriend were charged with serious criminal sexual offences against the young female friend of the mother’s daughter. The children of the marriage were not involved, but the mother ultimately pleaded guilty of a non-sexual offence of criminal negligence causing bodily harm. She was let out on bail.

Since the father was understandably concerned over their own children’s safety in the mother’s care, she consented to changing their custody arrangement, effectively relinquishing her entitlement to being the children’s primary residence, and instead having supervised access with them. This amended arrangement lasted throughout 2010 for a period of about 1.5 years while the original charges against her were pending.

With this in mind – and in light of the reduced time that the mother had spent with the children during that period – the father took steps to have the support he was obliged to pay in 2010 credited to him.

However, the father’s application to the court was dismissed.

The court concluded that even with the mother’s reduced schedule while on bail, the children still spent about 42 percent of their time with her. Furthermore, the trial judge had originally been somewhat generous in imputing $30,000 income to the mother, even though the actual amount she earned for the year prior closer to about $12,500. This inflated assessment benefited the father, in terms of calculating the support he was required to pay. The reality was that the mother had a modest part-time income, and had three children in her household. In contrast, the father was living with someone new who contributed financially to their household income. In short, the mother still had need for support, and the father still had the ability to pay it. The father was not entitled to be credited for overpaying support.

The application was dismissed, but the matter could be renewed in the future.

Karges v. Karges (2014), 2014 ONCA 163

Affirming Karges v. Karges, 2012 ONSC 6033

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, please visit us.