Background
This case involves a father’s request to modify child support payments due to a significant change in circumstances caused by the COVID-19 pandemic.
The parents began cohabitation in 2010 but separated in 2012, and they share joint custody of their two children, aged 12 and 11.
In 2017, the father was ordered to pay $388.00 monthly in child support, although his obligation was only $300. He agreed to the higher amount in recognition of the children’s and mothers’ needs.
In 2020, the father was laid off from his job because of the pandemic, and he started accumulating arrears in his child support payments. The father attempted to discuss this change with the mother, but she was non-communicative and had yet to disclose her Notice of Assessments from 2018 onwards.
In 2022 the father filed a motion to change the Final Order concerning child support.
Issues
1. Have the grounds for an uncontested trial been established?
2. Should the order for child support be amended?
Analysis
Grounds for an Uncontested Trial
An uncontested trial is when only the party making a claim provides the court with evidence and submissions. Rule 10(1) of the Family Law Rules allows the respondent to a motion 30 days to respond, failing to which is the option to proceed to an uncontested trial.
In this case, the mother failed to attend the case conference and the trial, despite being served the necessary documents. Therefore, the court determined that the grounds for an uncontested trial were established.
Amendment for Child Support
In considering the amendment for child support, the court referred to the Supreme Court of Canada case R v Colucci, 2021 SCC 24, which recognized that income decreases, including loss of employment, are common and should be considered when determining retroactive variations in child support.
If the payor is seeking a retroactive variation in child support, they must:
- Clearly demonstrate the reasons for the decrease in their income, allowing the court to determine the significance of the change.
- Provide evidence that the change in income was beyond their control and not a voluntary choice.
- Give proper and adequate notice to the payee regarding the intention to seek a retroactive adjustment in child support.
The father demonstrated that his income significantly decreased due to the loss of his job, which was beyond his control. He also provided notice of his intention to seek a retroactive decrease in child support and attempted to communicate with the mother about the change.
On the other hand, the mother failed to disclose her increased income and did not inform the father of her change in financial status. This lack of financial disclosure by the mother impacted the set-off amount of child support and led to the accumulation of arrears.
The court found that the mother was no longer on social assistance and had found employment, increased her income, and failed to notify the father of the change in her financial status. Consequently, the court determined that it would be fair to decrease the father’s child support retroactively from January 1, 2018.
The court found that the father had overpaid child support between 2018 and 2021, and he was entitled to a retroactive adjustment and credit for any overpayment resulting from the adjustments. Based on both parties’ tax returns, the court ordered the mother to pay the father’s child support on a set-off basis for 2020, totalling $468.
Additionally, the mother was required to provide her income tax returns and Notice of Assessments for 2021 and 2022. A future hearing was scheduled to make any necessary retroactive adjustments.
Furthermore, the court awarded costs of $1000 to the father, to be paid by the mother within 30 days. This decision was based on the mother’s conduct of failing to disclose her financial information.
The court emphasized in this case that full, fair, and timely financial disclosure is essential for an effective child support system.