Krivanek v. Krivanek 2008 Ont. S.C.J. – Child Support is a Two-Way Street

The case of Krivanek v. Krivanek demonstrates some of the complexities associated with the issue of child support both for the payor and the recipient.

The parties were married in 1977 and had two children, C born in 1982 and K born in 1988. The parties separated in 1991 and divorced in 1993.

In 1995, a Judgment set out the payment terms of the child support that was to be paid by the Father to the Mother. The Father was to pay to the Mother $500.00 per month for the support of each child until one of a variety of situations took place. For example, the Father would pay child support until the child became 18 and ceased to be in full-time attendance at a school or when the child reached the age of 22 years old.

It should be noted that this Judgement was made in 1995 prior to the release of the Child Support Guidelines. Thus, all the child support payments were deductible to the Father and were to be included in the Mother’s income for tax purposes.

The issue of child support started to become more complicated when the children finished high school and began university. C graduated from high school in 2001 and attended Carleton University. C lived with his Mother while attending Carleton and moved to his own apartment in February 2005. K graduated from high school in 2006. She then attended Carleton University but quit in 2007. She then attended a college and worked off and on until the date of the hearing.

From 1995 to 2003, the Mother did not request any updated financial information from the Father and never made any request for a variation in the child support payments. In September, 2003, the Mother’s lawyer sent a letter to the Father advising that the Mother wanted assistance with the children’s post-secondary educational expenses. The Mother did not receive a reply to this correspondence. In November 2004, the Mother’s new lawyers sent a second letter to the Father explaining the financial circumstances and asking for financial assistance. The Father’s lawyer responded in December 2004 promising to provide financial disclosure. The Mother commenced a Motion to Vary in March 2005.

One of the main issues of the Motion was if a retroactive child support order could be made for the benefit of C. The Court answered in the negative. An application for retroactive child support must be made while the child is still a child of the marriage as defined in the Divorce Act and the court has no jurisdiction to deal with retroactive or ongoing child support if the child has ceased to be a child of the marriage. When the Mother commenced her Motion to Vary child support on March 30, 2005, C was 22 years of age. C had moved out of the Mother’s home in September 2004 and thereafter was self-sufficient. In September 2004, C was in his second year at Carleton University; however, he stopped attendance at the university prior to March 30, 2005 and thereafter was working full-time. The Mother had not proven that C was a child of the marriage on March 30, 2005. Thus the court had no jurisdiction to make an order varying the child support for C.

Another issue dealt with retroactive child support for K. The parties were in agreement that the Judgment be varied retroactively to at least November 2004 to provide for child support for K in accordance with the Child Support Guidelines. What the parties disagreed on was how the arrears created by this decision should be quantified. The problem was that the Mother had stopped including child support in her income tax returns from 1998-2004 due to the coming into effect of the Child Support Guidelines, on the erroneous advice of an accountant. Since the Judgment in 1995 was made prior to the Guidelines, the Mother was required to include child support for tax purposes even after the Child Support Guidelines came into effect. As such the arrears owing to the Mother for the period from November 1, 2004 to December 31, 2006 was concluded to be the difference between what the Father should have paid the Mother under the Guidelines and the after-tax benefit the Mother received from the support paid during this period.

The final major issue discussed in this case was if the support order for K should be made retroactive back to January 1, 2003 rather than just to November 1, 2004. The court noted that until September 2003, the Mother took no steps to vary the child support order or to obtain updated financial disclosure from the Father. When the Father failed to respond to the letter sent in September 2003, the Mother delayed again and only contacted the father in November 2004, over a year later. According to the court, the Mother could have easily contacted the Father earlier and she was not fearful of contacting him. Thus, the court decided that the Mother did not have a “reasonable excuse” for not contacting the Father earlier. Based on this and other factors the court decided that the child support should be varied retroactively to October 1, 2003, right after the Mother’s lawyer sent the Father the first letter seeking additional financial assistance.

The case of Krivanek v. Krivanek highlights the fact that child support is a two-way street and that both the payor and recipient have obligations and conditions to meet when it comes to maintaining and varying child support payments.

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