Skip to content

If You Are Getting Too Much Support, Are You Required to Speak Up?

overpayment

If You Are Getting Too Much Support, Are You Required to Speak Up?

In a recent case called Gray v. Gray, the Ontario court considered whether a mother had an obligation to essentially take proactive steps to cut off her own child support, in a situation where the father had been overpaying for years.

In this case, the couple had two children together. When he was still a relatively young man, the father became disabled with chronic pulmonary disease. He went on the CPP Disability Benefit and received a subsistence income of about $14,000 annually. Based on this income, he had been paying the mother $211 per month since 1999 in child support. The mother, meanwhile, was gainfully employed the entire time.

In 2013, the father asked the mother to consent to an order terminating his support obligations, but she refused. He was therefore forced to apply to the court, which he did on a self-represented basis and with great difficulty, since he lived in a remove community which was 4.5 hours from Thunder Bay, the nearest city.

Looking at the facts, the court determined that both children had ceased to be eligible for support back in 2006 – i.e. 8 years earlier. Yet the mother had nonetheless continued to accept the disabled father’s monthly child support payments, even though they amounted to a good portion of his income.

Given that support recipients are legally entitled to have support amounts increased when new facts are discovered retroactively, the court pointed out that reverse is also true. It added:

The law of child support has evolved to the point where it is presumed that a parent knows when he or she is obligated to support his children and the amount of that support.. Thus it is incumbent upon the parent who has knowledge of the facts to act upon that knowledge. …

It would appear that “what is sauce for the goose is also sauce for the gander.” A mother who is aware that her children no longer qualify for support should act upon that knowledge. …

The court accordingly determined that the father had overpaid by about $16,000 over the years, starting in 2006. Finding no good reason to do otherwise, it ordered the mother to repay this mount, and also directed the Family Responsibility Office takes enforcement steps as necessary.

For the full text of the decision, see:

Gray v. Gray (2014), 2014 ONSC 1959

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 our main site.