The parties married in 1983, separated in 1994, and divorced in 1996. In the divorce judgment, the father was ordered to pay child support for their two daughters in the amount of $115 per week and per child, so long as their daughters remained “children of the marriage” under the Divorce Act. The father’s child support obligations ended in 2012 when both daughters obtained gainful employment after completing their post-secondary degrees.
In 1998, the father asked the mother to consider a reduction of his child support obligations, which she refused. From 2001 to 2016, the father resided outside Canada for significant periods of time during which no voluntary support payments were made, and no support payments were garnished from income diversion or other sources. The father brought a Motion to Change in November 2016, seeking a retroactive reduction of his child support obligations from 1997 onwards, on the basis that he earned a reduced income during that time.
When the Motion to Change was heard, the father had child support arrears of more than $170,000. The motion judge granted the father’s request, and retroactively reduced his child support arrears to $41,642. The mother appealed the motion judge’s order to the Ontario Court of Appeal.
The Ontario Court of Appeal referred to D.B.S. v S.R.G in setting out the factors that apply in applications to decrease support retroactively.
The four factors are:
- Whether there was a reasonable excuse as to why a variation in support was not sought earlier;
- The conduct of the payor parent;
- The circumstances of the child; and
- Any hardship occasioned by a retroactive award.
In addition, D.V.S. v S.R.G established the general rule that is usually inappropriate to make a support award retroactive to a date more than three years before the date of the application or motion.
In deciding whether to grant retroactive relief, the court referred to the case of Gray v Gray in identifying additional relevant factors, such as:
- The nature of the obligation to support;
- The ongoing needs of the support recipient and the child; and
- The ongoing financial capacity of the payor.
It is important to note that the best interests of the child is the paramount issue and parents cannot bargain away their children’s rights to support. While a change in the payor’s financial circumstances may allow for a retroactive decrease in child support and the accumulated arrears, a current inability to pay child support will not generally result in a reduction unless the payor can demonstrate that he or she cannot and will never be able to pay the arrears.
Applying the previously mentioned factors, the court declined to reduce the father’s child support arrears. The court found that the father has been a recalcitrant payor has made few support payments over 23 years, and has, in fact, misrepresented his financial situation over the years. He did not satisfactorily explain his significant failure to make support payments nor his extraordinary delay in proceeding with his Motion to Change. Furthermore, he failed to produce reliable evidence of his inability to pay while the arrears were accumulating, and this was fatal to his case.
As this case demonstrates, the court emphasizes the best interests of the child when it comes to a payor’s child support obligations. Without fulsome financial disclosure, it may be difficult to convince the court that a retroactive reduction in child support is warranted.
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