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Think Your Past Support Obligations Are Up-to-Date? Make Sure That Belief is “Reasonably-Held”

Closeup on man`s hands writing a check

Closeup on man`s hands writing a check

Think Your Past Support Obligations Are Up-to-Date? Make Sure That Belief is “Reasonably-Held”

Few weeks ago, a wrote a Blog about an important Supreme Court of Canada decision called S. (D.B.) v. G. (S.R.), which is the leading Canadian case on the question of the factors that go into making a retroactive child support order – meaning an order that the paying parent “cough up” support that should have been paid all along, but which (for various reasons) was never paid.

According to the court, one of the considerations is whether there has been “blameworthy” behaviour by the paying parent; that assessment is a subjective one, but there are several objective factors and elements to be considered as well.

One of those arises from a simple corollary question: Did the paying parent have a reasonably-held belief that he or she was already meeting the required support obligations? If yes, then this is what the court called a “good indicator” of a lack of blameworthiness; if no, then he or she may have been actively or passively avoiding paying the required child support, in which case a retroactive child support order might certainly be warranted.

So what constitutes to a “reasonably-held belief”, in this context?

Naturally, it depends on the scenario. But the concept was illustrated in a subsequent Ontario case called Grose v. Summers, where the court applied the principles in S. (D.B.) v. G. (S.R.), and evaluated the conduct of the support-paying father, as follows:

It is inconceivable in today’s world that a support payor would not know that child support is linked to the payor’s income. A payor cannot have a reasonably held belief that his payment of child support fulfills his legal obligation if he ignores the fact that his income is increasing annually. Mr. Summers income in 3 of the years between 2002 and 2007 was 50% higher than the income upon which his support payment was based. His conduct cannot be excused. While his is not the worst case of blameworthy conduct, it is definitely blameworthy and this court so finds.

It should be noted that this assessment of whether the belief is “reasonably-held” is fact-based, but according to the Supreme Court of Canada in S. (D.B.) v. G. (S.R.), there are certain hallmarks that the evaluating court can use. For example:

• A court may use a straight calculation of how much should have been paid, as opposed to how much was actually paid; the closer the two amounts, the more reasonable the belief by the parent that his or her obligations were being met (which in turn informs the blameworthiness assessment).

• A court assessing the situation should consider any previous court order or agreement that the paying parent was following; since these are presumed valid, the paying parent should be presumed to have been acting reasonably when paying it.

The bottom line is this: a parent who consciously avoids his or her child support obligations, or who does not disclose relevant increases in income, are very likely to find themselves facing a retroactive support order. All the more so where the avoidance/lack of disclosure is calculated and deliberate.

For the full text of the decision, see:

S. (D.B.) v. G. (S.R.), 2006 SCC 37 (S.C.C.)

Grose v. Summers, 2009 CanLII 55695 (ON SC)

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.