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Posts from the ‘Retroactive Support’ Category

Must Support-Paying Father Abandon Music-Career Dreams?

Must Support-Paying Father Abandon Music-Career Dreams?

In a case called Caine v Ferguson, the court was asked to consider whether a support-paying father of a child, who now had additional children to support, should be relieved of paying $11,000 in support arrears, because he acted as a stay-at-home dad while pursuing a fledgling part-time music career.

The 29-year old father had been previously ordered to pay $332 per month for his first child, who was now 9 years old, based on what the court imputed to be his income of about $35,500. He paid no support whatsoever, and the Family Responsibility Office started taking steps to collect on about $11,000, representing the unpaid support arrears that had accumulated so far. The child’s mother was on social assistance.

The father was now married to another woman with whom he had two additional children. The court described his part-time musical endeavours this way:

He stated that he is a talented musician and that he is writing, performing and producing his own music. He showed the court his recent CD. He says that he is not making any money yet, but he is giving away the CD at no cost and performing at shows for free in order to become better known. He said that his music is being played on music stations. He also has made some music videos that are on the internet.

The father brought a motion asking the court to eliminate the arrears entirely, claiming that he earned no income in the two most recent tax years.

The court found that – despite his child care obligations to his new family – the father was deliberately under-employed, and his decision to stay at home was simply not reasonable in light of his obligations to support his first child. (And it did not help him for the court to learn that he quickly depleted a $10,000 personal injury settlement, obtained after a car accident, by traveling to St. Maarten with his new wife and making music videos).

Rather than try to pursue his music career part-time, the court found that the father could have been earning at least $21,300 per year at a minimum wage job, even taking into account his child care responsibility to his other children. As the court put it:

He is choosing to pursue a speculative music career at [his first child’s] expense. He has no desire to pay child support for [her] and appears quite content with the status quo

He refused to pay child support and completely ignored the order. He has financially abandoned this child. … The court cannot condone such behaviour and needs to send a clear message that there are consequences for acting this way.

… [The mother’s] social assistance entitlement has remained unchanged. It has been the taxpayer who has had to subsidize the [father’s] financial neglect of [his child]

The court concluded that he had made nominal efforts to seek work since 2008, when the order for support of his first child was initially made.  Nothing about his current situation called for a change to that order, other than to adjust the $35,500 that had been imputed to him at the time, since in all the circumstances it was unrealistically high.

The court retroactively imputed that amount of income to the father, and adjusted the arrears slightly to accord with the lower income figure that it imputed. The court also observed that the father could still pursue his musical aspirations on a freelance basis, if he remained adamant.

For the full text of the decision, see:

Caine v Ferguson, 2012 ONCJ 139 (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 RussellAlexander.com

To Get Retroactive Support, Does a Kid Have to be Eligible at Now … or Only Back Then?

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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”?

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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.

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

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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.