In this case, the mother sought spousal support arrears and child support arrears for one of the parties’ three children.
Pursuant to the Divorce Act, in order to make a claim for child support, the children for whom support is sought must be either:
- under 18 years of age and under parental control, or
- over 18 years of age and, by reason of illness, disability or other cause, unable to withdraw from parental charge.
Pursuant to the Family Law Act, in order to make a claim for child support, the children for whom support is sought must be either:
- under 18 years of age and unmarried, or
- enrolled in school full time.
All three children in this case were over 18 years of age when this court action began, so options (a) above do not apply. The mother dropped her claim for child support arrears for the two older children because they were over out of school and not under parental control.
When this court action began, the youngest child had just finished school and had just returned from a vacation that was a graduation gift from the mother. The judge determined that the mother could apply for child support for this third child, even though she was technically no longer in school, because she was still under parental control. She was still considered to be under parental control because:
- she had just graduated from school,
- she had just returned from a vacation for which her mother paid, and
- she had not yet entered the workforce.
Once it was established that the mother could claim child support arrears for the youngest child, the court had to determine how far back her claim for arrears should go.
Usually, parties can make a claim for support arrears from three years prior to broaching the subject of support. However, parties can claim arrears farther back than this three year time period if there is blameworthy conduct on the part of the payor.
The father’s blameworthy conduct in this case includes the following:
- He failed to disclose his income, as required by the parties’ Separation Agreement.
- When seeking a reduction in support because of a temporary decrease in employment income, the father failed to inform the mother of stock options from which he earned a significant income., and;
- When the father stopped paying child support while he took time off work to care for his new spouse, he failed to mention that his new spouse was receiving a significant income while she was off work.
As a result of this blameworthy conduct, the mother thought that she was receiving an appropriate amount of support and thus had no way of knowing that she should have commenced this court action much earlier. Consequently, the judge ordered the father to pay child support and spousal support arrears in the amount of $463,000.00 as well as ongoing spousal support in the amount of $2,000.00 per month.
This case provides an example of when parties can make a claim for child support arrears even though the children for whom they are claiming are support are over the age of 18 and are no longer attending school fulltime.
This case also outlines how far back claims for support arrears can be made. In sum, claims for support arrears can go back as far as is reasonable, which is usually up to three years before the support recipient broaches the subject of support with the support payor. However, if the payor does not act reasonably, arrears can be ordered beyond this three year threshold. This procedure is meant to ensure that support payors do not benefit from their own wrongdoing.
This case also outlines what constitutes unreasonable/blameworthy conduct. In the judge’s words:
“I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support…Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct.”