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
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