This case is regarding a father's motion filed on April 14, 2021, seeking mandatory consulting for parenting decisions and increased parenting time. In response to the motion, the mother requested supervised parenting time and child support based on the father's income from January 1, 2015.
The parents got married in February 2006 and separated on November 2011. They have two children, aged 13 and 15.
- What start date should be used for child support?
- What income should be imputed to the father for child support purposes, from 2015 to 2020?
1. What start date should be used for child support?
The Child Support Guidelines aim to establish a fair standard of support that ensures children continue to benefit from both parents' financial means after separation. The disclosure of income information by the payor is crucial in the child support regime. Courts emphasize the importance of disclosure in child support cases and the consequences of breaching disclosure obligations.
The mother filed a claim for child support in response to the motion on September 24, 2018, and the father was required to provide financial disclosure in accordance with the Family Law Rules, the Family Law Act, and Child Support Guidelines. However, despite being represented by a lawyer and receiving multiple disclosure orders and extensions, the father failed to make adequate or any disclosure.
At the hearing, the father still had not made adequate, or any disclosure. The September 27 Hearing, the on-going support was settled on consent for 2021 and 2022 (based on father's incomes of $44,000 for 2021 and $41,000 for 2022). The mother sought to have child support retroactively since their year of separation.
The Supreme Court of Canada has outlined the framework for retroactively increasing support:
- The recipient must meet the threshold of establishing a past material change in circumstances.
- Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary.
- Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice;
- The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel v Graydon. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct, and the date of retroactivity will generally be the date of the increase in income; and,
- Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
Retroactive child support is a debt. There is no reason why it should not be awarded unless there are strong reasons not to do so. Retroactive child support awards will commonly be appropriate where payor parents fail to disclose their increases in income.
In this case, the date of mother's request for support was set as September 24, 2018, the date she filed formal notice in response to the motion. Her delay in seeking child support, however, was due to the father's significant blameworthy conduct and a history of violence. The mother claimed she was afraid of the father due to his past abuse, which led her to withdraw her claim in 2012. The court acknowledged this unusual behavior and noted that she only raised the issue of child support once the father filed a motion for parenting issues.
The Court uses factors in the D.B.S. to consider if the support dates should be altered using the courts discretion. The court considers:
- Delay: the court evaluates whether the reason for the delay in bringing the application is understandable, rather than focusing on whether there was a reasonable excuse for the delay.
- Blameworthy Conduct: blameworthy conduct is anything that privileges the payor parent's own interests over his or her children's right to an appropriate amount of support.
- Circumstances of the child: the court takes into account any hardships experienced by the child during their upbringing or if there is an immediate need for funds at the time of the hearing. These factors not only support the award of child support but also influence the extent to which the award is retroactively applied.
Given that the father had ample notice of the child support claim over a span of 10 years, failed to provide financial disclosure until shortly before the hearing, had steady employment, and neglected support payments for two years, the court concluded that the payor should not benefit from the recipient's fear.
As a result, the court deviated from the presumptive start date and ordered support to commence on January 1, 2015, as initially claimed by the mother.
2. What income should be imputed to the father's income for child support purposes, for the years being claimed (2015 to 2020)?
Section 19 of the Child Support Guidelines grants the court the authority to impute income to a spouse as deemed appropriate, and it provides a non-exhaustive list of circumstances for consideration.
It is a general rule that separated parents have an obligation to financially support their children, and they cannot evade this responsibility by deliberately reducing their income.
To determine the imputed income for the father for child support purposes, the court examined various factors such as his age, education, experience, skills, and health. Additionally, the court considered his current earning history, potential income if working to capacity, recent work history, and overall ability to earn income. Unfortunately, there was limited evidence available regarding these matters.
The court is entitled to draw an adverse inference against a party who fails to comply with disclosure obligations, as mandated by the Family Law Rules, the Family Law Act, the Child Support Guidelines, and in this specific case, two disclosure orders. Consequently, the court exercised this right in the present case.
Despite having an obligation for many years, the father did not pay child support for his children. Furthermore, he had been aware of the legal nature of the child support obligation and how it is calculated since the consent court order issued on May 10, 2012. Nonetheless, he failed to fulfill his support obligations.
Based on these circumstances, the court imputed the father's income under Section 19 to the minimum wage for 2015 and imputed it from 2016 to 2020 at his current earning level of $43,000.
Additionally, the mother was granted costs in this case.