Can a Parent Replace Child Support … with Gifts?
Even for the best-intentioned of parents, the mechanics around fulfilling the obligation to pay child support can be a challenging part of any separation or divorce. If for nothing else, there is the fact that once you blindly hand the money over, you have little control over how (or even whether) it is actually spent to benefit your child. The lack of input and control – and the need to put faith in the integrity and follow-through of the other parent – can be frustrating.
As a support-paying parent, it might be tempting for you to take matters into your own hands, perhaps through what I’ll call a self-help “direct delivery” method. For example, you might be tempted to pay (older) children their child support entitlement directly, or buy them needed items yourself, rather than relying on the other parent to use the support money to do so.
Unfortunately – and unless this has been expressly allowed in a court order – this isn’t an option.
In fact, this approach was expressly rejected in an Alberta case called Haisman v. Haisman. The father, who had been in arrears on child support for his daughter to the tune of $14,000, had over the course of a few years spent about $6,000 on clothes and other items for her nonetheless. A lower court judge, in calculating his overall support obligations, had apparently taken into account the $6,000 and reduced the arrears by that amount. The Alberta Court of Appeal found this was an error, stating:
When a mother has custody of a child and a court orders the father to make payments to the mother for the maintenance of that child, it is not open to him to make payments to the child instead. Nor is it open to him to buy things for the child and to claim that the amounts which he spends in this way should be deducted from the maintenance payments which he was ordered to make to the mother. In neither case has he complied with the order of the court. Further, the mother, as the custodial parent, is entitled to decide how maintenance payments for the child will be spent.
As the court in another Alberta decision called Kazeoleas v. Kazeoleas added:
If this were not so, a father could, for example, buy expensive skis for his child and then reduce his maintenance payments by the cost of the skis. The mother would then be left to find the money to house and feed the child without any help from the father. This cannot be right.
This same approach was applied in an Ontario case called Szucs v. Freeman, where the court said:
Gifts to the children do not constitute support to the custodial parent. It is the custodial parent who pays the rent, pays the utilities, purchases the groceries, purchases the children’s clothing, and so on. Gifts to the children do not in any way contribute to the lessening the custodial parent’s obligation in that regard.
These decisions all confirm that a support-paying parent does not have the unilateral right to decide to give gifts or other items in lieu of support, then claim that his or her child support obligations have been satisfied. Nor, for that matter, does that parent get to choose how money that should be earmarked for child support is to be spent by the other parent, which is a topic I will address more fully in an upcoming Blog.
For the full text of the decisions, see:
Haisman v. Haisman, 1994 ABCA 249 (CanLII), reversing 1993 CanLII 6988 (AB QB), leave to appeal to S.C.C. dismissed without reasons, [1995] S.C.C.A. No. 86.
Kazoleas v. Kazoleas, [1997] A.J. No. 820, (July 9, 1997) 9103 00516 and 4803 80820, Edmonton (Alta. Q.B.).
Szucs v. Freeman, 2007 ONCJ 96 (CanLII).
