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Factual Background

The parties were married in 1989 and have 2 children. The parties separated in 2009 and were divorced in 2010. In this case, the applicant brought a Motion to Change a Final Order in which she sought to require the Respondent to pay child support for the child of the parties’ relationship. In response, the Respondent sought an order dismissing the application. The Final Order was made pursuant to Minutes of Settlement in 2010 and provided for joint custody of the children and no monthly child support payable by either party. However, the Respondent was ordered to pay the applicant his share of the “extraordinary expenses”. Moving forward, the Respondent was ordered to pay the Applicant a yearly lump sump for his share of the extraordinary expenses for each year that the children remained full-time students at a post-secondary institution.

Legal Analysis

The issues which this Motion to Change was centered on were as follows:

  1. Had there been any material changes in circumstances relevant to child support since the Final Order which satisfy the threshold test for varying that order?
  2. If yes, has the applicant established that the child was entitled to child support and has remained entitled to support since then?
  3. If yes, should the applicant be permitted to advance a claim for a retroactive increase in child support, and if so, what is the appropriate commencement date?
  4. If a variation of the Final Order is appropriate, what is the appropriate approach to calculate child support and what is the appropriate amount of child support that the Respondent should pay?

The court reiterated that Section 17(4) of the Divorce Act specifies that the threshold test on a Motion to Change child support will only be satisfied if there has been a material change in circumstances. The court found that there had in fact been a material change in circumstances since the Final Order was granted. Soon after the Final Order was made, the child began suffering significant mental health difficulties which made it impossible for the child to withdraw from the Applicant’s care and obtain the necessaries of life. While some of the child’s mental health difficulties began prior to the Final Order being made, the court held that the nature and extent of the difficulties did not become apparent until after the order was made.

After determining that the threshold test for variation had been met, the court turned it’s attention to whether a variation of the Final Order was appropriate. The court found that the child continued to be entitled to child support until the end of 2012 but that his need for financial support had increased during this time. However, the court found that there was insufficient evidence to find that he remained a child of the marriage and thus entitled to support after this time. While the court considered the Applicant’s evidence of the child’s mental health needs, the court was not satisfied that the child was unable to withdraw from the Applicant’s charge or obtain the necessaries of life on his own.

Even if the evidence had satisfied the court that the child had an ongoing entitlement to support, it would be necessary to proceed to the quantification stage where the court would determine whether the Guidelines approach would be inappropriate, and if so, whether any child support should be paid by the Respondent. The court determined that even if entitlement had been proven, they still would have ordered that no child support should be payable. As a result of the significant ODSP benefits that the child received monthly, the court found that the standard Guidelines approach would have been inappropriate even if the entitlement to support had been met.

In addressing the Applicant’s claim for retroactive child support, the court noted the Supreme Court of Canada’s ruling that there is no automatic right to pursue retroactive child support. The main considerations in determining whether retroactive child support should be ordered are the need on the part of the child for support, the payor’s interest in certainty and predictability when financial obligations appear to be settled; and the need for flexibility in order to ensure a just result. Courts should also consider whether there was a reasonable excuse for why the claimant did not pursue child support or increased support earlier, the conduct of the payor parent including whether they behaved in a blameworthy manner in relation to child support, consideration of the past and present circumstances of the child and the extent to which they may benefit from such an award and finally, any hardship that may be occasioned by a retroactive order. The court held that there was no evidence of misconduct on the part of the Respondent and that the Respondent fully complied with the child support obligations outlined in the Final Order. The court accordingly dismissed the Applicant’s Motion to Change.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.