This case addresses the issue of child support arrears.
In February 2000, the Father was ordered to pay child support to the mother for one child. An Order was issued on January 4, 2005, which varied child support payable to the Mother and fixed arrears owing to the mother's assignee, the City of Toronto. On December 21, 2011, the Father was involved in a car accident that resulted in physical injuries and depression, after which he stopped working. In 2013, the Father was advised that the child had completed school and was working full-time. Thereafter, the Father brought a Motion to Change to terminate support and rescind arrears owing.
Arrears Owing to the Respondent Mother & Termination of Ongoing Child Support
The Court found that the Father's Motion to Change was governed by section 37(2.1) of the Family Law Act which provides:
In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
- discharge, vary or suspend a term of the order, prospectively or retroactively;
- relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
- make any other order for the support of a child that the court could make on an application under section 33.
The Court continued its analysis by citing DiFrancesco v Couto,  OJ No. 4307 (ONCA), which sets out the factors to be considered when a court is deciding whether to exercise its discretion to reduce arrears. Such factors include:
- The nature of the obligation to support, whether contractual, statutory or judicial.
- The ongoing financial capacity of the payor.
- The ongoing need of the custodial parent and the dependent child.
- Unreasonable and unexplained delay on part of the custodial parent in seeking to enforce payment of the obligation, tempered, however, in the case of child support with the fact that such support exists for the child’s benefit, is charged with a corresponding obligation to be used by the custodial parent for the child’s benefit and cannot be bargained away to the prejudice of the child.
- Unreasonable and unexplained delay on the part of the payor in seeking appropriate relief from his obligation;
- Where the payment of substantial arrears will cause undue hardship, the exercise of the court’s discretion on looking at the total picture, weighing the actual needs of the custodial parent and child and the current and financial capacity of the respondent, to grant a measure of relief where deemed appropriate; and
- Whether the payor made any voluntary efforts at compliance with the order.
The Court further held, at paragraph 26, that a party's present inability to pay does not, by itself, justify a variation of an Order. Rather, the party must also demonstrate that there is a future inability to pay.
The Court then addressed its attention to the Father's current unemployment status and found that parents have a "joint and ongoing obligation to support their children" (paragraph 27). As such, support payors must use reasonable efforts to address "whatever medical limitations they may have to earn income" (paragraph 29).
In considering the facts before the Court, Justice Sherr found, at paragraph 33, that the Father had filed sufficient evidence to demonstrate that his ability to earn income since his car accident had been compromised. The Court then considered when the arrears were accumulated and found that "Most (if not all) of the arrears were accumulated after the father's ability to earn income was impaired by the car accident. A portion of the arrears were also accumulated after the child was likely no longer eligible for support" (paragraph 36).
Given the above, the Court terminated ongoing support and rescinded all of the arrears owing to the Mother.
Arrears Owing to the City of Toronto
The Court continued its analysis by considering the arrears owing to the City of Toronto. The Court distinguished the arrears owing to the City of Toronto from those owing to the Mother, as the arrears owing to the City of Toronto were "accumulated prior to the existing order on January 4, 2006 and before any change in the father's circumstances" (paragraph 38).
The Court found that the Father wanted "the court to go behind the existing order and find that it was wrongly decided" (paragraph 39). The Court found that there was no merit to the father's request to adjust the amount of income imputed to him. Further, the Court cited Trang v Trang, 2013 ONSC 1980, which held at paragraph 55:
The onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.
In so finding, the Court found that such arrears continue to be owing to the City of Toronto and that although the father's "present ability to work has been compromised, the evidence did not establish that the father would be unable to pay child support in the future" (paragraph 44). As such, the Court ordered that the Father was to pay the sum of $150 per month towards his arrears at this time, but does not preclude the Director from enforcing arrears against any insurance proceeds arising from the father's car accident or against any government payments.