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Father Pulls Disappearing Act for 13 Years, then Resurfaces to Claim Support “Refund”

refundFather Pulls Disappearing Act for 13 Years, then Resurfaces to Claim Support “Refund”

It’s not often that a court comes right out and calls the behaviour of a parent “shocking”, but in a recent Ontario case called George v. Gayed that was the court’s unequivocal response to the father’s audacious request to be reimbursed for the support he had already paid.

The couple had been married eight years and had two daughters, who were now 30 and 27 years old. The father was an engineer with a Ph.D. specializing in aerospace and marine technology and naval architecture, while the mother was trained as a medical doctor specializing in ophthalmology, though was working in a different field currently. They separated in 1988.

In 1995 the father was ordered by the court to pay $750 per month in support. Shortly afterwards he claimed he was unable to pay this amount because his income had been reduced; however, he failed to provide any proof. Over the following few years, he remained uncooperative with the mother’s attempts to get full financial disclosure from him, and in 1999 – after realizing that she would never get the needed information and that she could not afford the legal fees to pursue the full child support entitlement – she eventually moved forward for a divorce. This resulted in the father being ordered to pay $360 per month based on what the court speculated was his income at the time of $25,000.

However, a few months after that 1999 order, the father unilaterally cut off all contact with the children and remained out-of-touch for about 13 years. He did not contact them even on special occasions, such as their birthdays, Christmas or graduation. The mother was unable to locate him despite her diligent efforts, which included hiring a private investigator. This left her solely responsible for raising and supporting the children, and she racked up significant expenses of her own to put their daughters through post-secondary education. The daughters themselves contributed to a very reasonable extent, but they were left with large debts in the process.

In 2012, the father suddenly re-surfaced and claimed in a motion that he had actually overpaid support by $68,000. The mother, not surprisingly, brought a counter-motion asking that she finally be given full financial disclosure by the father, that she be awarded greater child support based on those accurate figures, and that she be awarded her full legal costs.

The court summed up its view of the father’s position this way:

I conclude that the [father’s] conduct in this case is shocking. He has abandoned his daughters and burdened the [mother] with the responsibility of providing for their support and university education. He now comes out of hiding and seeks a reimbursement of amounts he claims he has overpaid when he clearly should have paid more.

Rather than grant the father’s ill-conceived request, the court took the opportunity to make some serious inquiries into the father’s finances, and among other things ordered extensive disclosure of the father’s income and assets (and indeed forced him to sign authorizations for the release of third party information in the mother’s presence). As a result, it was revealed among other things that the father and a previously-undisclosed investment account that held almost $127,000, which account the court ordered frozen. He also had corporate income in the role of president, sole shareholder and officer/director of his consulting company, and was receiving a pension from the United Kingdom.

Further, the court accepted the mother’s evidence, including the expert report she had commissioned, and concluded that her support entitlement calculations were not only reasonable, but were actually conservative. The daughters’ educational goals were also well in-line with the family expectations, and they had contributed a reasonable amount to their own tuition and expenses.

In short, the father did not get the “refund” of support he claimed; to the contrary, he was ordered to pay a lump-sum of more than $60,000, reflecting the amounts he should have been paying during his 13-year self-imposed absence from the children’s lives. He was also ordered to pay the mother’s outstanding costs of $17,000, plus her full legal costs of just under $70,000.

For the full text of the decision, see:

George v. Gayed, 2014 CarswellOnt 12841, 244 A.C.W.S. (3d) 398, 2014 ONSC 5360 (Ont. S.C.J.).

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.