The Ontario Court of Appeals Rules
This is an article published in Money & Family Law, Vol. 12, No. 3, March 1997, pp. 19 - 20.
There is no automatic "one rule" precluding collection of child support arrears accruing more than one year ago. In some circumstances, it is possible to cancel the arrears but the facts of each case must be examined carefully. The Ontario Court of Appeal clarifies the law in this decision.
Filipich v. Filipich (1996), 92 O.A.C. 319
Ontario Court of Appeal per Finlayson, Doherty and Abella JJ.A. No. C14560
September 13, 1996
Arrears of child support totaled $25,350.00 while spousal support arrears were $6,500.00.
The motions judge had reduced the amount of arrears payable on the basis of a "one-year rule." The wife appealed. The Ontario Court of Appeal noted that there was no authority in support of such a rule as it pertains to child support arrears. The cases of Haisman v. Haisman (1995), 7 R.F.L. (4th) 1 (Alta.C.A.), leave to appeal to S.C.C. refused (1995), 15 R.F.L. (4th) 1 (Alta C.A.) and Gray v. Gray (1983), 32 R.F.L. (2d) 438 (H.C.J.) demonstrate that there is no such rule.
The Court of Appeal held that there does exist a discretion in a court "to restrict the extent to which it will enforce payment of child support arrears, there is no fixed formula." The court refers us to the Gray decision, with respect to the relevant factors that a court may apply in the appropriate circumstances.
Those factors, as cited in Gray, are as follows:
- the nature of the obligation to support, whether contractual, statutory or judicial;
- the on-going financial capacity of the respondent spouse;
- the on-going need of the custodial parent and the dependent child; then, to a lesser degree and successively;
- unreasonable and unexplained delay on the part of the custodial parent in seeking to enforce payment of the obligation, tempered, however, in the case of child support with the fact that such support obligation exists for the child's benefit, is charged with a corresponding obligation to be used by the custodial parent for the child's benefit and cannot be bargained away to the prejudice of the child;
- unreasonable and unexplained delay on the part of the respondent spouse in seeking appropriate relief from his obligation; and
- where the payment of substantial arrears will cause undue hardship, the exercise of the court's discretion on looking at the total picture, weighing the actual needs of the custodial parent and child and the current and financial capacity of the respondent, to grant a measure of relief, where deemed appropriate. (Reference is also made to the Family Law Reform Act, R.S.O. 1980, c. 152, s. 18(5), [this would now read Family Law Act] which sets out circumstances which the court may consider in making a support order under that Act.).
The appellate court also noted that the delay by the wife in instituting proceedings to enforce payment of the arrears was offset by the respondent husband's failure to apply to court and seek a variation of his support obligations. Therefore, the wife's appeal was allowed and the arrears were fully reinstated. The wife obtained her costs throughout.
We may conclude that arrears of child support may still be suspended or rescinded in an appropriate case. However, all the relevant factors as set out in the 1983 Gray decision must be examined. There is certainly no automatic rule that will result in child support arrears older than one year being canceled.