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.)
