Determining Retroactive Support Payments
S.P. v. R.P., 2011 ONCA 336
In a case that was just released May 2, 2011, the Ontario Court of Appeal had to determine whether the amount determined at Trial to be a father’s retroactive support payments ought to be upheld or overturned. At the Trial of the matter the Court held that the father owed to the mother $260,000.00 for child support arrears for the third child of the marriage, $203,000.00 for spousal support arrears and ongoing spousal support for an indefinite basis. The father decided to appeal this decision and this forms the basis of the Ontario Court of Appeal decision which will be discussed in further detail below.
The parties in this case were married for 18 years and separated in 1991. They have three children, and the youngest was 6 years old at the time of separation. The mother was a stay-at-home mother from the birth of the first child until the date of separation when she updated her education and obtained full-time employment as a law clerk. The father is a chartered accountant and worked as such until the date of separation. Thereafter, he has worked for several corporations in varying capacities. The mother has not cohabited with anyone since the date of separation, whereas the father began living with his current wife on the separation date.
When the parties separated they entered into a Separation Agreement. The mother was given sole custody of the children and the father agreed to pay to the mother child support in the amount of $1,611.11 per month for each child and spousal support as follows:
“$1,250 per month from 1993 to 1996, $833.33 per month for 1997, $666.66 per month for 1998, $416.66 per month for 1999, and $1 annually thereafter.”
As part of the agreement, support could be varied if the parties agreed. When the father left a positioning 1995 and didn’t obtain new employment until 1996, the mother agreed to reducing the support payments to be made for both child and spousal support. Agreements were signed in both 1996 and 1997 to this effect and the result was that the amounts paid by the father for child and spousal support were much less than what had been agreed to in the Separation Agreement. After this time, and until 2003, the father paid varying amounts of support, including stopping payments for a period when he was unemployed. It was not until 2003 when the third child entered University, did the father resume making support payments. In 2003, the mother requested copies of the father’s income tax returns and was told at that time that the father had actually been employed since 2002, but had not disclosed this information. The mother began to think that the father had not been forthcoming with financial information since the date of separation and began requesting more documentation. The father ignored all of her requests and she commenced an Application for income disclosure and retroactive child and spousal support in 2007.
At Trial, it was found that the husband had “intentionally failed to disclose to the [wife] the benefits he received from the date of separation, during negotiations leading to the separation agreement and the amendments to it, until disclosure was ordered during the course of this litigation.” Overall, it was held that the father had not acted equitably towards the mother and the children. In addition, since the mother was unable to claim retroactive child support for the two older children, the father had benefited from his behaviour. The result was the award for retroactive child and spousal support as set out above and an award for ongoing spousal support in the amount of $2,000.00 per month in addition to costs in the amount of $107,082.50.
Court of Appeal Decision and Analysis
As part of the appeal, the father argued that the mother did not have standing to argue retroactive child support for the youngest child because by the time the claim was made in 2009, the child was no longer a child of the marriage. It is important to note that in August 2007 when the mother brought the Application, she was self-represented and had failed to omit the claim for retroactive child support in the original Application. It was not until 2009 when the mother’s pleadings were amended that the claim for retroactive child support was made. The court held that the relevant date for the consideration of when the claim for retroactive support was made should be in 2007 when the original Application was made and not 2009 when the Application was amended.
The father further claimed that the child was only a child of the marriage until she completed her post-secondary education in April 2007. She obtained full-time employment in September 2007 after returning home from trip during the summer of 2007. In order to no longer be considered a “child of the marriage,” the child has to have withdrawn from the charge of the parent. The Court did not find any reason to believe that the child had withdrawn from the charge of her mother until beginning full-time employment in September 2007. Therefore, the Court held that in August 2007, the mother had standing to bring the claim for retroactive child support.
The father also claimed that the Trial judge had misapplied the test for retroactivity as determined by the Supreme Court of Canada. Retroactivity is to be considered in a holistic way, but must include the consideration of the following four factors:
- the reason why support was not sought earlier,
- the conduct of the payor parent,
- the circumstances (both past and current) of the child, and
- potential hardship on the payor parent flowing from a retroactive award.
The Court of Appeal held that the Trial Judge only considered the conduct of the father, however, after taking into consideration each of the factors, the Court held that the Trial Judge correctly awarded the Retroactive child support for the support of the youngest child.
At Trial, child support was awarded retroactively for the youngest child back to 1995. The father appealed this award stating that at most, the Order should only have gone back three years from the date of the mother’s Application. The Court of Appeal held that this was not correct as the Trial Judge had explicitly relied on the exception to this rule, namely, where there is blameworthy conduct on the part of the payor parent, the retroactive support payment is to start as of the date that the blameworthy conduct began. Therefore, retroactivity to 1995 was held to be correct as was the quantum of the arrears to be paid.
This case is the discussion of retroactivity of spousal support as the father was also appealing the award for retroactive spousal support. From the outset, the Court of Appeal took the opportunity to clarify that the considerations to be given for the award of retroactive child support are similar to those for the award of retroactive spousal support. The only difference that additionally needs to be taken into consideration for spousal support awards is the different objectives of spousal support as opposed to child support. In this case, the Court held that, for the same reasons expressed with respect to the retroactive award for child support, the mother was at least entitled to some award for retroactive spousal support.
The Court looked into the parties’ Separation Agreement and the fact that the couple had agreed to a sliding scale of spousal support to be awarded to the mother. The Court held that as per the terms of the Agreement the mother would have been entitled to spousal support from 1995 to 2003 as her income remained the same throughout. In 2004, her income increased substantially and therefore, she had become self-sufficient as contemplated in the Separation Agreement. Therefore, the Court held that the Trial Judge erred in the quantum of retroactive support owed by the father. The sliding scale used in the Agreement should have been used in the calculation of support and support should have ended in 2004. The recalculation of the retroactive award for support came to a total of $17,593.20 instead of the original $203,000.00 awarded by the Trial Judge. In addition, the award for ongoing spousal support was held to be unjustified.