Alimony

Jonas v Akwiwu, 2021 ONCA 641

This case dealt with the notice that a payor is required to give a payee to reduce support retroactively

Background

In March of 2019, the parties entered into a Consent Order whereby the father was required to pay support for parties two children based on his employment income of $122,499 and his pension income of $15,000. At the time of the Consent Order, the father was living and working in Nunavut.

A few months later, in October of 2019, the father claimed that he had suffered a mental breakdown which required him to take a leave of absence from work without pay. The father’s lawyer immediately sent the mother a letter advising her of same and asking that support be reduced to $100 per month in light of the father being on an unpaid leave without a source of income. The father did not commence the Motion to Change proceedings until 11 months later.

Despite finding that the father’s change in employment was a material change in circumstances, the motion judge declined to order a reduction in child support retroactive to October 2019 because the court found that the letter from the father’s lawyer to the mother did not provide the mother with sufficient information to be able to make a decision. Instead, the motion judge found that the effective date of the reduction in support should be October 1, 2020 which was the first day of the first month following when the father brought his Motion to Change proceedings.

The court specifically took issue with the fact that the letter did not set out the reason for the leave of absence, the father’s diagnosis or an estimate as to when the father may return to work. The Court also took issue with the fact that the father had waited 11 months to bring his Motion to Change proceedings which they found prejudiced the mother and the two children who were financially dependent on the arrears that had accumulated over the 11 months when the father was not paying support pursuant to the Consent Order.

The father appealed the motion judge’s decision.

Analysis

On appeal, the father argued that the motion judge erred in determining the effective date for a retroactive variation in the child support order.

On appeal, the father sought to introduce fresh evidence in support of his argument that the mother was adequately informed of his change in employment and that he intended to seek a variation of the existing child support order. The mother on the other hand sought to bring in fresh evidence and sought disclosure from third parties. The Court of Appeal did not accept either parties’ fresh evidence because the evidence did not meet the Supreme Court of Canada test in R v. Palmer because the evidence could have been adduced at trial with reasonable diligence and the court was not satisfied that even with the evidence the result would have been any different.

The Court of Appeal found that the motion judge’s finding that the mother and the children suffered prejudice as a result of the father’s failure to bring his Motion to Change on a timely basis was reasonable. The Court of Appeal also agreed with the motion judge that the letter from the father’s lawyer did not include enough details.

Conclusion and Comments

The Court of Appeal found that the father was not able to demonstrate that the motion judge made a palpable and overriding error which would warrant overturning the decision. The motion’s judge’s decision was upheld and awarded costs to the mother in the amount of $2,500.

This case set up an interesting dichotomy between the notice that is required to be given to claim a retroactive increase in support as opposed to the notice that must be given to claim a retroactive decrease in support. In Collucci v Collucci, the Supreme Court of Canada held that a recipient must only “broach” the subject of an increase in support to be considered effective notice. However, in this case the Court found that the letter to the mother did not provide sufficient detail which would then seemingly mean that a payor must do more than only “broach” the subject of decreasing support

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