Albee v. Benincasa

This decision of Justice Shaw from the Ontario Superior Court of Justice stands for the proposition that if payor spouse does not seek an immediate reduction in his or her child support obligations when his or her financial circumstances first change, a retroactive reduction cannot be sought. In this case, in 2009, the father brought a motion for a reduction in his support payments after being laid off from his place of employment. In the years preceding the motion, the father experienced reductions in his earnings. However, the father delayed for three years before seeking a reduction in his support obligation. Had he brought his motion to vary in 2006, or at any time during the succeeding three years, he would have been granted a reduction. However, to now order the mother to repay of the overpaid support would result in financial hardship to the mother and thus was not granted.

While the court has the discretion to order a retroactive increase and decrease in support payments, from this case, it is clear that the scales are not evenly balanced. In D.B.S. v. S.R.G., the Supreme Court of Canada showed little reluctance to go back three years or even more when the payor has demonstrated blameworthy conduct to order retroactive child support. However, the same principle does not apply when a retroactive reduction is being sought. In the broadest scheme of things, the latter distinction is logical as support monies are almost immediately used by the recipient spouse towards childcare expenses and thus cannot be expected to be returned years after the fact.

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