Setting Off Child Support Arrears Against Monies Owed By The Recipient
Starr v Starr, 2008 CarswellOnt 11318 (Ont. SCJ)
This case addresses the issue of setting off child support arrears against monies owed by the recipient to the payor.
The parties in this case separated in September 1992. The wife, after separation, made allegations that the husband had sexually abused one of the children of the marriage. Soon after, the allegations grew to include all three of their children. Criminal charges were laid against the husband, but the charges were withdrawn. The wife would soon move to British Columbia where she alienated the three children from their father, denying him access in the face of numerous court orders.
The husband, the respondent in this matter, brought a claim for malicious prosecution against the wife and was awarded general damages of $50,000 plus pre-judgment and post-judgment interest, and costs of $37,415.56. Despite this large award, the husband was in arrears for child support. Thereafter, he brought a motion to change spousal and child support.
There were three issues addressed by Justice Timms, two of which are discussed below:
1. Should the arrears of child support be set-off as a result of the money owing from the support recipient to the support payor?
The reasonable person would state that it would not make any sense to allow the wife to enforce her judgment for support arrears and ignore the debt that she owes to the Mr. Starr (paragraph 25). Child support, however, is a right of the child and child support arrears belong to the child (Richardson v Richardson (1985), 1 RFL (3d) 67 (Ont. CA)).
Justice Timms, however, distinguishes the majority of previous cases as they examined the idea of set-off in terms of child support arrears and equalization payments (paragraph 29). These cases established that an obligation “owing to the children by one parent should not be capable of reduction simply because the other parent owes the first parent an equalization payment” (paragraph 29).
Justice Timms reasoned that, although the respondent owed the mother a sum of money for child support arrears, the money owing by the mother to the Respondent flows from a judgment that “is intimately connected to the breakdown of the marriage” (paragraph 33). Further, Justice Timms states, “A set-off would serve to prevent the applicant herself from benefiting while she still owes a very significant amount of money to the respondent” (paragraph 34).
In short, “to allow the applicant to collect that amount while ignoring the debt from her to the respondent would be highly unjust” (paragraph 35).
2. Should those arrears be rescinded in any event because of the behaviour of the wife?
The Court continued its judgment to hold that the case law also favours “a straight rescission of the arrears, as a result of the behaviour of the applicant with respect to access” (paragraph 41). In Lawrence v Mortensen (2000), 8 RFL (5th) 133 (Ont. SCJ), the court held:
The law is clear that, while a child’s right to support is independent of a child’s right to access, the court does have the power to deny or reduce support if the custodial parent persistently interferes with access. However, this is an extreme step. The court is unlikely to do so if the child has need of financial support.
Justice Timms interpretation of the case law led him to conclude, “even here in Ontario, judges have the scope, on the right facts, to make an order to reduce or even eliminate child support” (paragraph 51). To decide otherwise would be to “reward the applicant’s malicious, contemptuous, alienating behaviour with a windfall” (paragraph 51).