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Son Moves Closer to Support-Paying Dad, Who Slips Him Some Extra – Was Dad Now Overpaying?

father and son evening walking

In Skotnicki v. Cayen the court was asked to determine whether the father’s existing child support obligations to his university-aged son Joseph should change, now that the son had moved closer to him from across the country.  The father was also voluntary paying the boy extra money directly, and was helping him with living expenses.

The background was this:  The parents had married in 1989 and divorced in 2003 after having three children.  The father had been paying child support of $900 per month for Joseph under a consent order dated in 2017.

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Originally, Joseph had been living with the mother in Ottawa while attending university there. However, in 2018 he moved to where the father lived in British Columbia and switched university programs. He did not actually move in with the father, but rather shared a rented apartment during the school year.  During the summer the plan was for Joseph to live with the father at his lakefront home. The court explained the father’s position:

The father says that although Joseph did not live under the father’s roof during the school year, the father’s home was like a second home to Joseph. The father says that Joseph pays extended visits to the father’s home, that he eats meals there, that he helps out around the house and that he stores his sporting equipment there. The father says he considers Joseph to be a member of his household.

The father claimed that the son’s move to near him meant he was essentially overpaying support, because he was paying the mother as required but also giving Joseph money directly.  The court explained:

The father says since Joseph moved to B.C. in July, 2018, the father has continued to pay the mother the $900.00/month in child support for Joseph as the December 15, 2017 order requires him to do but, in addition, he has been giving Joseph $450.00 to $900.00/month. The father says that he regularly buys groceries for Joseph, that he bought Joseph a used car and that he paid for insurance for the car for six months.

The father says that it is not fair for him to be obliged to continue to pay the mother $900.00/month in child support for Joseph when Joseph is no longer living with the mother, particularly given that the father is now financially supporting Joseph directly. 

In considering the father’s argument, the court pointed out that in law, it was his onus to show that there had been a “material change in circumstances” that was not contemplated when he and the mother arranged for the consent order in 2017.

Unfortunately in this case, he did not meet that onus.  The father had been aware as early as 2015 when Joseph started university that he would likely move out of his mother’s Ottawa home before finishing the program.   He knew that the mother had chosen Joseph’s curriculum without giving him any say in it, and that he was unhappy about it. By 2017 the father also knew that Joseph was struggling academically and that there was tension between him and mother.   He also knew that B.C. would be an attractive “Plan B” for Joseph both from an education perspective, but also because the father lived there.  Finally, the father knew that if Joseph continued to attend university but moved out of the mother’s home to anywhere else, the father would still have a continuing obligation to pay child support for him.

In short, the father knew of all these elements at the time the consent child support order was made between him and the mother in 2017.  He failed to meet the onus of showing there was a “material change of circumstances” since then. The court accordingly refused the father’s request that the mother pay retroactive child support to the father in respect of Joseph, and to have her repay the overpayment of support since 2018 when he moved to B.C.

For the full text of the decision, see:

Skotnicki v. Cayen, 2019 ONSC 4831 (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

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