Child Support from Delinquent Father — How Far Back Should The Order Go?
In an interesting recent decision, the Ontario Court considered the issue of how far back a retroactive child support order should go, in light of the fact that the father had actively dodged the mother’s legitimate and reasonable support requests since their separation.
As a means of summarizing the father’s overall approach to his child support obligations, the judgment of the court in Marsh v. Jashewski began with the following words:
Most parents hope to see their children succeed in life. That often includes supporting them through college or university, to the extent their means permit and the goal is reasonable for their child.
This case is a sad exception. …
The couple was married in 1985, had a child that year, and were divorced six years later. At the time of the divorce, the mother was awarded custody of the child and the father was ordered to pay $300 per month. This figure was based on the father’s earnings from unemployment insurance. In reality, however, the husband had obtained a job with Toyota in 1989 when the parties were separated, and eventually his earnings increased dramatically until they reached almost $100,000 at the time of trial.
Although the mother was vaguely aware of this, she did not pursue disclosure as to his actual income, nor did the father volunteer this information in advance of the divorce judgment being issued. Nor did that judgment contain any provision requiring the parties to make ongoing financial disclosure. As a result, the father continued to pay only $300 per month for many years, which the court characterized as a “paltry” contribution.
Meanwhile, the mother was earning only a meagre income, and over the years had tried unsuccessfully to locate him to arrange for an increase in the support he paid. She produced phone bills showing attempts to call the father’s brother and father, who hung up on her when she asked for the father’s address. She also hired a lawyer to send the father a letter, but it was returned to her unopened. She could not afford to have the lawyer take further steps, and was unsuccessful in getting Legal Aid funding. She also tried to e-mail the father, to which the father replied with “extreme profanities” and ridiculed her for incurring legal fees.
Meanwhile, the daughter of the marriage, now 26 years old, was still attending university, and intended to complete a year of post-graduate studies by 2012. In light her ongoing financial need and the father’s ongoing unresponsiveness, the mother applied to the court for an order to have the support amount adjusted going-forward, and to obtain an order for the amount of support the father should have been paying all along. The question for the court was precisely how far back the father’s support payments should go.
The mother – who represented herself at trial – argued that support should be retroactive to 1997, which was the date that the Child Support Guidelines came into effect. The father, on the other hand, claimed that it was unreasonable to award child support retroactively because the mother could have tried to initiate proceedings earlier.
The court considered the well-established legal criteria for determining whether to award retroactive child support, namely:
1) whether the mother had a reasonable excuse for her delay;
2) the conduct of the father;
3) the circumstances of the child; and
4) whether there would be any hardship occasioned by a retroactive award.
On the one hand, the court found that the main cause of the mother’s delay was the simple fact that she could not locate the father and – as a single mother on a very modest income – did not have the financial means or the emotional wherewithal to pursue him aggressively. On the other hand, the court did consider the fact that she knew his address as early as 2004, but delayed trying to reach him until 2006, and that technically the father was still in compliance with the original order and had no court-ordered obligation to disclose his increased income.
Nonetheless, the court honed in on the fact that the father’s conduct was “deplorable”, in that he deliberately hid his pay increases from the mother. The tenor of his profanity-laced replies to the mother’s e-mail asking for an increase in support made it clear that he had only contempt for his legitimate child support obligations. Essentially, the court found, the father was attempting to intimidate the mother into not proceeding.
As a result, the court concluded that the father should pay retroactive child support to November of 2003, which meant that he owed the mother more than $45,000. Support levels were also adjusted going-forward, in keeping with the Child Support Guidelines.
As an interesting aside: This order was granted despite the fact that at the time of trial in 2011, the father had been dismissed from Toyota (which, incidentally, he blamed the child for, accusing her of spreading false rumours about him when she worked there during the summers. He offered no proof of this, however). The father was now earning only about $55,000 working elsewhere. Still, the court found that a retroactive child support order was still warranted, and in fact should be moved backward in time beyond the date normally dictated by the general rule in these cases, i.e. the date on which there is effective notice to the father that child support should be increased. In this case, it should be back-dated even further, to the date on which the mother sent the father the e-mail indicating that the child needed “financial assistance”; it did not affect matters that the e-mail did not formally refer to the words “child support”.
For the full text of the decision, see: Marsh v. Jashewski, 2011 ONSC 3783 http://canlii.ca/s/6ku3i
