Skip to content

Posts from the ‘Retro active child support’ Category

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

How Blameworthy Conduct Can Affect Retroactive Child Support

bad conduct

How Blameworthy Conduct Can Affect Retroactive Child Support

Perhaps it’s trite to say: Divorce does not bring out the best in people. The Ontario family courts are filled with litigation that is often spurred or exacerbated by bad behaviour, lack of cooperation, and unreasonable posturing by one or both parents.

In response, courts are certainly authorized to impose sanctions for various misconduct (for example in the form of granting orders to strike pleadings, impose costs, or declare a party to be in contempt). However, a less-tangible (but still permissible) method for addressing a family litigant’s bad behaviour comes in the form of an “adjusted” child support award – one that takes into account the paying parent’s blameworthy conduct.

This was illustrated in the Supreme Court of Canada called (D.B.) v. G. (S.R.), where the Court considered application by one parent for retroactive child support from the other. The Court turned its focus on precisely how and to what extent a family court should take into account a paying parent’s blameworthy conduct when evaluating the amount retroactive child support he or she should be required to pay.

In this regard, the Court made the following observations:

• “Blameworthy conduct” is anything that privileges a paying parent’s own interests over the right of his or her children to an appropriate amount of child support.

• No level of blameworthy behaviour by parents should be encouraged.

• Even if the paying parent does nothing to actively avoid his or her child support obligations, he or she might be acting in a blameworthy manner by consciously choosing to ignore those obligations.

• In other words, a paying parent who knowingly avoids or diminishes his or her support obligation to the children of the relationship should not be allowed to profit from that conduct.

• When considering the appropriateness of a retroactive award, family courts should not hesitate to take into account a paying spouse’s blameworthy conduct.

• In fact, courts should take “an expansive view” of what constitutes blameworthy conduct for these purposes.
There is no bright-line test as to what amounts to blameworthy behaviour in the family law context. However, the Court gave some examples of the type of conduct to avoid, stating:

• A paying parent cannot hide his or her pay increase from the parent who receives the child support, in the hopes of avoiding larger child support payments.

• Nor can a paying parent cannot intimidate a recipient parent in order to discourage him or her from bringing a child support application.

• A paying parent cannot mislead the other parent into believing that child support obligations are being met, when he or she knows that they are not.

For the full text of the decision, see:

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

 

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.

After Paying 16 Years of Child Support, Man Learns He is Not the Father – Should He Get a “Refund”?

springer

After Paying 16 Years of Child Support, Man Learns He is Not the Father – Should He Get a “Refund”?

Family law has no shortage of interesting cases; in this Ontario decision, which was handed down just a few days ago, there was a “plot twist” that would rival one you’d find on any reality TV show.

The couple met in 1997 when they were both in relationships with other people. (In the woman’s case, she was married and in the process of separating from her husband). They started a casual sexual relationship, and about eight months later the woman gave birth to a child. The mother estimated the child must have been born 10 to 12 weeks prematurely; apparently both assumed the man was the biological father and they signed the birth papers accordingly.

The man started paying $100 in monthly child support, and continued to pay faithfully for 16 years, even though they never lived together as a family and no real parent-child relationship was ever fostered.

Then, everything changed: At the request of Ontario Works (from whom she had been receiving social assistance) the woman took the man to court to ask for a substantial increase in the amount of child support he was obliged to pay, which was to be geared to his current income. In response, the man asked for a DNA paternity test, which proved he was not the biological father.

With these results out in the open, they then agreed to terminate the man’s obligation to pay child support, but he (again at the behest of the social assistance office) took it one step further – he asked to have all his prior payments over the past 16 years returned to him, totalling almost $17,000.

The court refused the man’s request. Even though he was not the true father (and indeed claimed he had not even seen the child since 2000, which the court questioned), the man had shown a settled intention right from the beginning to treat the child as his own, and could not now withdraw his financial support unilaterally. As the court observed: “Of considerable importance was [the man’s] comment that he always considered [the child] to be his son until the DNA paternity test said otherwise in 2014.” It was also important to note that in law, the needed “settled intention” was not contingent on the man actually knowing the child was not his.

Also, there was no evidence that the woman had misled the man into believing that he was biological parent; to the contrary, at the time of the child’s birth she honestly believed he was the father. Even if the man had doubts himself, he did not investigate: In the first year or two the woman had mentioned there had been some “overlap” between the end of the sexual relationship with her former husband and the beginning of the casual relationship with the man. The man could have requested a paternity test at the time, but instead he waited another 14 years.

In this case, the best interests of the child governed. Even though he was not the real father, the court confirmed that in law the man had a historical obligation to pay child, and declined to order the money returned. (By agreement, he was no longer obliged to pay going-forward, however.)

What are your thoughts on this decision? Should the man have gotten his child support money back?

For the full text of the decision, see:

Day v. Weir, 2014 CarswellOnt 15022, 2014 ONSC 5975

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.

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.

Mother Claims 6-Year Delay in Seeking Child Support Due to Father’s Mental Health Issues – But Court Doesn’t Buy It

support

Mother Claims 6-Year Delay in Seeking Child Support Due to Father’s Mental Health Issues – But Court Doesn’t Buy It

In Williams v. Rezonja, the couple’s relationship started after a “blind date” and resulting in their having a child together. They got engaged, but never did marry.

Although their relationship was apparently at first, it quickly deteriorated after the child was born. The woman said the man started to exhibit bizarre behaviour, which she said came “out of nowhere”. He stopped interacting with her and the child, and she could never be sure whether he was going to work at his well-paying job or not. He told other people she was “out to get him”, and sometimes slept on the couch in his clothes, with his keys in his pocket.

When the woman met her future mother-in-law, they agreed that he should be assessed. After this, he stopped coming communicating with her or coming home. He stayed with his mother, who conceded that he had been admitted to a mental health facility for a few days. Soon after, the woman got a letter from is lawyer, advising that she needed to move out of the house that they shared, and which was in the man’s name.

The woman – who was unemployed at the time – did move out as requested. She took the child with her, and found a job in order to support herself. She eventually claimed child support from the man – but not until about 6 years later.

The court heard evidence that although she knew where to reach the man, the woman chose not to ask him for child support for all those years because she felt it was “unsafe” for her and the child to be anywhere near him. Although he had not threatened her verbally or physically, she said she had concerns for safety and if he was possibly unwell felt she did not want him involved with the child at all.

The man’s version of events was that the woman ended the relationship, and that he was depressed for a period of time. He had indeed been admitted to a psychiatric unit for 2 to 3 weeks, and was off work for 2 years, but said that he was now healthy. He believed that his problems were directly caused by the woman’s treatment of him.

The court did a balanced evaluation of the evidence, considering all the relevant factors, including: the reasons for the woman’s delay; the conduct of the man; the circumstances of the child; and any hardship a retroactive award might cause the man. No single factor is decisive, it pointed out.

Next, the court began by pointing out that as parents, both parties had an obligation to ensure their child receives appropriate support in a timely manner.
Here, the woman’s stated reason for delay were unconvincing; the court found she exaggerated her fear of the man and the potential for retaliation, and was certainly sophisticated enough to have sought legal advice. In short, the court found that she did not pursue child support because she was prepared to “go it alone”.

Turning to the man, the court found that he was blameworthy to some extent, too. He appears to have concluded, based on the fact that mother was not pursing him for support, that he was “home-free” and would not be on the hook financially. As the court put it: “There was an obvious incentive to continue to ignore that which he otherwise knew was his legal obligation.”

With all this in mind, the court concluded that this was not a case for retroactive child support for the full six years. The mother had clearly demonstrated that she wanted nothing to do with the father and was prepared to raise the child on her own. The court did, however, award support for the period starting December 1, 2012, which is the month following the date of the woman’s court application.

For the full text of the decision, see:

Williamson v. Rezonja, 2014 ONCJ 72 (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 our main site.

74-Year Old Mine Worker Hides Almost $175K in Salary – Should He Pay Retroactively?

mine6

 

74-Year Old Mine Worker Hides Almost $175K in Salary – Should He Pay Retroactively?

In a recent Ontario case, the court had to grapple with deciding whether an elderly husband who had made an unusually high income in one year – but who was now living on very limited means in a basement apartment – should have to pay retroactive support to his unemployable wife.

The couple was married for almost 20 years. At the time of their separation, the wife was 51 and the husband was 74. Since that time, the wife had developed various medical issues including possible Parkinson’s disease, which likely rendered her unemployable. She was currently living with and taking care of her elderly father, doing the cooking, laundry, cleaning. She had no pension and no savings to speak of, and lived very frugally.
The parties reached a simple negotiated separation agreement requiring the husband to pay about $800 per month to the wife. It was based on his declared income of about $36,000 per year.

However, about a week after signing the separation agreement, the husband received a job offer to temporarily work the “tool crib” at the local Mine. However, the position lasted longer than initially expected and for the year 2012 he earned almost $173,000 including his pension.

The wife learned of the husband’s job indirectly, because (as the court put it), they had “the same circle of friends. Her lawyer’s request to the husband for financial disclosure went unanswered, and the wife was forced to apply to the court for retroactive spousal support as part of their divorce.

The court considered the various factors that allowed it to order retroactive spousal support – including (among other factors) the wife’s past need and the husband’s ability to pay, as well as the underlying basis for support, any delay in claiming it, any undue hardship to the support-paying husband, and also any blameworthy conduct on his part.

In this case, the husband had an obligation under the separation agreement to disclose any change in his financial circumstances within five days. The wife had asked the husband for such disclosure but he had ignored her lawyer’s requests. She was accordingly left with no alternative but to go to court.

There was also evidence that the husband had reckless spending habits. The court described it this way:

It became clear during the course of the evidence that the [husband] has never met a dollar that he did not care to spend. Even after being unemployed for a considerable period of time and earning a substantial income in 2012, the [husband] did not see fit to put aside any money for himself let alone for his estranged spouse. In his words, he worked in a “high paid trade and they spent a lot of money on trips and other things”. …

Finally, the husband also claimed to be heavily in debt, but had no proof. The court added that the husband “went on to say that the balance of the money was spent on lifestyle expenditures for meals and restaurants, buying rounds in the union hall and some gambling in Sault Ste. Marie.” His lack of financial disclosure was also “worthy of criticism”, it found.

Nonetheless, after evaluating these circumstances, the court added that the now-76-year old husband was living in his sister’s basement apartment, and would never again be employed in any meaningful way. His assets consisted of an old truck worth about $2,000, and about $37,500 per year in pension.

This being the case, he could not now and would never be able to afford to pay the retroactive spousal support that was being claimed by the wife. The court accordingly declined to make the order. (However, in light of other circumstances, including the terms of the separation agreement, it did order the husband to pay the wife about $1,000 per month, going-forward).

Should the husband have been ordered to pay up retroactively, in this case? What are your thoughts?

For the full text of the decision, see:

Dufour v. Dufour, 2014 ONSC 166 (CanLII) http://canlii.ca/t/g2nh8

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.

Do Courts Adjust Support for Temporary Income Fluctuations?

 temp

Do Courts Adjust Support for Temporary Income Fluctuations?

The calculation of the amount of child support payable by one parent to the other has been made easier by the Child Support Guidelines, which provide a formula based on income. And, as I’ve written in a post recently Income for Child Support Purposes , “income” is a relatively static number, based primarily on income as reported to the Canada Revenue Agency.

However, unfairness can arise – either to the paying parent or the recipient – when income levels fluctuate unexpectedly throughout the tax year. For example a paying parent’s income may temporarily drop due to illness or other unforeseen cause, to the point where he or she will have markedly less actual income for a period, than the actual income figure on which the child support payments are based.

This kind of income fluctuation was the focus of a recent case before the Ontario court called Simms v. Brown. The parents had joint and shared custody of their children. However, in the past few years and for several extended periods of time the father had been off work for medical reasons. As a result he claimed that his income tended to fluctuate, and when at their lowest he had difficulty meeting his ongoing monthly child support payments.

The father went to court to ask to have his $13,000 in support arrears reduced to zero.

The mother, in contrast, not only resisted the reduction of arrears, but wanted a retroactive adjustment as well as an upward adjustment to his going-forward obligations. She insisted that the father actually earned more than the income that had been used to calculate the Guidelines amounts.

To support this, she provided a chart showing the father’s actual income from 2010 through 2012, versus the income on which the father was ordered to pay support based on the Guidelines. It also showed the point at which the parents’ custody obligations changed to a shared-custody arrangement. For example, for 2010 the mother had sole custody, and the father was paying support based on reported income of $74,000 per year. However, it turned out his actual income for that year was $86,000. The mother was asking for retroactive support of $1,800 for that year, to make up the difference and reflect what he should have been paying. Similarly in 2011, the father paid support based on reported income of $76,000, but his actual income for that year was $106,000 because of a one-time severance retirement package he received.

The mother added that the Director of Family Responsibility Office had refused to enforce the prior support order because it was “too confusing”.

The court considered these figures in great detail. It observed that, generally speaking, it was not realistic that the father’s child support obligations should be re-adjusted anytime there is a short-term change in his income. Rather, for the purposes of calculating support “income” is the amount reflected on Line 150 of the father’s annual Notice of Assessment from Canada Revenue Agency. The court also acknowledged that this meant that any short-term changes in income would not be reflected on Line 150, and that realistically any child support order would often be several months behind any temporary changes in the father’s income in any event.

Nonetheless, in this case the court made some complex mathematical adjustments to support; this included an adjustment to account for the fact that, before the parties started their shared parenting arrangement, the mother had sole custody of the child and was legally entitled to receive appropriate child support from the father for that period. The court also streamlined the support amount to take into account various credits, setoffs, adjustments relating to child support and extraordinary expenses, and factored in retroactive support owed by the father as well.

In terms of going-forward, the father advised the court that he was back to earning a full salary of $80,000 per year – but he was planning to make a claim for disability which would once again reduce his income somewhat. The court pointed out that this would mean his final income for 2013 would again be difficult to predict in advance, but it set an amount based on his 2012 income, for the time being.

For the full text of the decision, see:

Simms v. Brown, 2013 ONSC 6854  http://canlii.ca/t/g1qtk

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.

Must a Father Pay a Decade’s Worth of Unpaid Child Support? And Is Mother Too Late to Ask?

crazy

Must a Father Pay a Decade’s Worth of Unpaid Child Support? And Is Mother Too Late to Ask?

In Le v. Tran, the couple had been dating for several years but never lived together, and in fact had separated a few months before their child was born in 2000. The child had always lived with the mother, and had very little contact with the father, who never made any child support payments towards the child’s care whatsoever. However, in fairness the mother had never asked him for any payments, either.

More than a decade later, in 2011, the mother sent the father a letter, asking him to pay child support for their now-11-year-old child. By this time the father had married someone else, and had two other children of his own. After receiving the letter, the father began paying monthly support going-forward. However, he refused to pay the additional 10 years’ in support payments – totalling about $65,000 – that the mother was asking for.

The mother (who was also remarried but currently unemployed) went to court to obtain an order.

Although the court had the authority to make a retroactive support order for the full 10 years, it declined to do so in this case. It factored in the child’s circumstances, the conduct of both parents, and the hardship that might be caused.

On the one, the father’s conduct was certainly blameworthy: he never paid any child support whatsoever until the mother initiated the court proceedings. He could not claim that he was unaware that the child was his, or that the mother had blocked him from having contact with the child.

On the other hand, the mother’s reasons for taking over a decade to request child support – which included the excuse that she was an immigrant from Vietnam and was unfamiliar with Canadian law – were simply not reasonable. Rather, the court concluded that after getting a little legal advice early on, she had merely done a “cost-benefit” analysis in her own mind, deciding that the amount she would have to pay in legal fees to chase the father down was not worth the support she might receive from him as result of those efforts.

Both parties had acted unreasonably; still, an award forcing the father to pay at least some retroactive support was appropriate. The question remained, as to how much.

Here, the father had substantial income (about $90,000 per year), some savings, owned a home, and had very little debt. However, an order requiring him to pay the full $65,000 would cause hardship to the man’s children from another relationship, whom he also supported.

The court therefore granted the mother’s request, but only to a limited extent: in addition to continuing $800 in monthly payments, the father was ordered pay $14,000 to cover unpaid support as far back as January of 2010, but nothing beyond that.

For the full text of the decision, see:

Le v. Tran, 2012 ONCJ 601 (CanLII)  http://canlii.ca/t/ft3jr

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.

Father Loses Home and Rental Income – His Child Support Obligation Stays the Same

rental

Father Loses Home and Rental Income – His Child Support Obligation Stays the Same

In a recent decision in Roscoe v. Roscoe, the issue was whether a father who had lost his home under seizure and sale – and whose income from a rental unit had likewise been eliminated – was entitled to have his child support obligations reduced.

The answer from both the lower court and the Court of Appeal was: “No.”

In this case the father had been ordered in 2003 to periodically pay support for the child he had with the mother from whom he was now divorced. Since that time, however, the father had been delinquent in making those child support payments; indeed had never voluntarily paid child support since the original order was made and instead had to be coerced to fulfil his obligations. In fact, he stopped making support payments entirely in March of 2011. The child was now 14 years old.

It was also noteworthy that the court-ordered support amount was based on the court imputing the father with a rental income of $16,800 per year from his home; the court had been forced to guess at the father’s income because he had not been forthcoming with the requisite financial disclosure.

Then, in 2010 the father fell into default on his mortgage payments, and his home was seized and sold by the bank. This naturally eliminated the father’s source of rental income, whether at the level imputed by the court or otherwise.

In light of his situation, the father – who was self-represented and who had previously been declared a vexatious (i.e. pesky) litigant – brought a motion to court to have the original 2003 support order varied, and to have the amount he owed to the mother reduced retroactively. At that variation hearing the father was unsuccessful: the lower court judge refused to retroactively reduce the amount he owed to the mother, and replaced the prior periodic payment schedule with an order requiring him to pay her $32,000 as a lump sum. It also prohibited the father from bring further motions (some of which included various constitutional challenges that the father was contemplating).

The father then sought to have the lower court ruling overturned on appeal; likewise, he was unsuccessful before the Ontario Court of Appeal (where, incidentally, he represented himself as well).

The appeal court began by making particular note of the father’s recalcitrance in his refusal to make child support payments voluntarily, and in his refusal to make proper financial disclosure. It also pointed out that the father had dragged the mother into protracted litigation.

Against this background, the court then evaluated the father’s financial situation. It conceded that the father’s financial circumstances had indeed changed somewhat from the date that the original support order had been issued. However – apart from the seizure of his home – the father had not demonstrated any other change in his circumstances. The fact that the father was apparently not working at the present time did not rebut the trial judge’s conclusion that he was nonetheless capable of working.

In short – and with the father’s history of being unjustifiably litigious and yet unwilling to comply with prior orders – the court refused to cut the father any slack.

Ultimately, the appeal court confirmed that the $32,000 lump-sum award was appropriate, and that there was no reason to reduce the retroactive child support that the father owed.

For the full text of the decision, see:

Roscoe v. Roscoe, 2012 ONCA 817  http://canlii.ca/t/ftwzw

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.

More About the Family Responsibility Office: Some Common Problems, Addressed

 

More About the Family Responsibility Office:  Some Common Problems, Addressed

In one of last week’s Blog posts, I detailed some of the more specific elements and frequently-asked questions about the Family Responsibility Office (FRO), which is a government office in charge of processing child and spousal support orders, and providing enforcement support for recipients through various means.

To continue on that topic, I am addressing some question from spousal or child support recipients or payors that come up quite frequently:

1) What if the payor’s address is unknown? The FRO can enforce a support order even if it does not have the support payor’s current address or employer information (although it certainly helps!)    Even if the FRO does not have the payor’s current address, telephone number and employer information, the FRO will still register the recipient’s support entitlement, and can track support payments and arrears.

Incidentally, by law payors are required to tell the FRO about any changes to their personal information within 10 days of the change to avoid possible enforcement action.  If a payor does not provide this information within the time stipulated, If we don’t get this information from the payor or the recipient, we have a number of tools available to search for the payor’s address or employment information. Once we find the information we need, we can take enforcement action, if necessary, to recover any money owed.

2) What if the payor has left the province or the country?   In cases where there is a cross-border element, (e.g. the recipient lives in Ontario but the payor lives in another province or in the U.S.) the FRO can take various steps to enforce payment.   These arise through legislation including the Ontario Interjurisdictional Support Orders Act, 2002, which allows the FRO to enforce support orders involving Ontarians and people who live in other reciprocating jurisdictions.

For example, if the payor moves to another province, the Act specifically allows the FRO can ask the province to enforce the support order.  On the other hand, if the payor moves to another country, and provided there is a reciprocal enforcement agreement in place, the FRO can ask the government of that country to enforce the support order.   FRO has entered into enforcement agreements with every Canadian province and territory, as well as 31 countries. These different governments are known as ‘reciprocating jurisdictions’.

Finally, the Interjurisdictional Support Orders Act, 2002 also allows the FRO to:

•Register and enforce support orders issued outside of Ontario;

•Make or change a support order when the recipient lives in Ontario and the payor lives in a reciprocating jurisdiction; and

•Make or change a support order when the payor lives in Ontario and the recipient lives in a reciprocating jurisdiction.

For example the FRO may file a Writ of Seizure and Sale against the support payor in Ontario, which allows the FRO to take any profits the arise on the sale of the payor’s assets, such as his or her home or cottage.  The FRO can also suspend the payor’s driver’s license if needed.

3) What if the payor is self-employed?   In the normal course, when the court issues a support order, it also issues a “support deduction order”, which gives the FRO the authority to ask the payor’s employer (or other source of income) to deduct the support payments from the payor’s income, and forward them directly to the FRO.   (And a payor is obliged to notify the FRO if he or she changes employers.)

However, those payors who are not on a regular payroll, or who are self-employed or unemployed, are responsible for making all payments directly to the FRO.  This can be arranged in one of several ways:  1) Pre-authorized debit (PAD) from a bank account; 2) Internet banking and telebanking; 3) Cheques or money orders; or 4) by mail.

4) Is it true that my car can be impounded for non-payment of support?

As I have detailed previously, the FRO has a wide variety of enforcement options at its disposal.  For example, in some circumstances the FRO can suspend the payor’s driver’s license for non-payment of support.   (Note that this consequence is not generally imposed after only one missed payment, but rather my result after the payor has continued to default on payments and is unwilling to work out a payment plan.  Moreover, this avenue is taken only after the payor is notified in writing in advance, and is given various options to avoid the suspension.)   However,  as part of the Ontario Road Safety Act, 2009 which is effective December 1, 2010, a driver who is found to be driving with a suspended licence under the Highway Traffic Act for (among other reasons) continuing to default on support payments, the police may impound the driver’s vehicle for seven days.   So – as a result of the combined operation of these two events – a defaulting payor may indeed find that his or her vehicle has been impounded.

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 roperty, paternity disputes, and enforcement of court orders.  For more information, visit us at www.RussellAlexander.com