Can Child Support Arrears be Cancelled?

CAN CHILD SUPPORT ARREARS BE CANCELLED? - AN UPDATE

By Gene C. Colman, May 3, 2018

I wrote the article that you will see below (well at the bottom of this page) in early 1997. That's 21 years ago! While there have certainly been developments in the case law, the basic principles that I discussed back then do still apply. I focused on the 1996 Filipich case in the Ontario Court of Appeal. Filipich is still cited as a binding legal precedent in Ontario. Filipich clearly established that there was no longer a rule in Ontario that one could only go back a maximum period of one year to enforce child support arrears. Filipich told us that the court has a discretion re how far back to go; that is still the case. Let's look at the legal principles that have further developed.

However, let me first relieve any apprehension that you might have had when I noted above - "look at the legal principles". I am not going to write my PH.D. thesis here (even though I am a lawyer who might have enjoyed a career in academia teaching law and philosophizing about it); I am not going to give you a theoretical dissertation of all of the ins and outs of changing child support orders and rescinding (cancelling) arrears that have built up (as much as the academic in me would love to do that!). I am going to take a much more practical approach that I hope will be of use to those of you who are contemplating seeking a reduction in child support, including a cancelling of child support arrears that have accumulated. What I am going to try to do here is put into simple lay person's terms the do's and don'ts.

Please permit me to give some disclaimers and cautions first. Firstly, all cases are different. Cases turn on their own facts. Cases can turn on legal principles applicable to your situation and this article here does not discuss all possible legal principles that might apply to you. Secondly, I cannot be held liable if you rely on something I've written here and your case goes south. I am writing here about general principles as gleaned from the cases. General principles are all well and good but specific fact scenarios (and how one presents his/her facts) can most certainly influence an outcome. Thirdly, legal interpretations change. Less frequently legislatures make changes; more frequently new cases are published that can influence subsequent cases. Now that I have hopefully insulated myself from being sued for something that I write here, let's look at some principles that I have derived from the cases. (At the bottom of this updated article, I have listed some sources and embedded links so that you can educate yourself. Caveat: It's best to consult with a family law lawyer but I do understand that not everyone will do this.)

1. Previous Order: We are going to assume that there is a previous order already made or a valid Separation Agreement. Our discussion relates to attempts to change the previous order or Separation Agreement.

2. What legislation applies?: Determine if your claim comes squarely within the relevant legislation. For married and divorced persons, you are under s. 17(1) of the Divorce Act. For unmarried persons in Ontario, you are under s. 37(1) of the Family Law Act.

3. Child Support Guidelines? Look at the relevant section of the applicable Child Support Guidelines. Does it apply to you? [Ontario - S. 14; Federal - s. 14)

4. Can you prove a Change in Circumstances?: Does your evidence prove that there has been a material change in circumstances since the making of the previous order? If not, there might be some relief available if evidence has come into your possession since the last order that you could not have reasonably obtained earlier.

5. Can you prove a change at each relevant time period? It's not good enough to simply state that you have now fallen on hard times and cannot afford to pay now. You have to establish that at the time periods when the arrears accumulated, you could not afford to pay the full amount on account of a legally acceptable reason such as your income declined in a material fashion and that was not your fault.

6. Evidence to prove the change: It's not good enough to simply state that you now have health problems (for example) that prevent you from working full time. You need convincing expert medical evidence to cover all relevant time periods.

7. Future ability to pay arrears: It's not good enough to simply establish a current inability to work less than full time. You need to show through convincing medical evidence that you are not likely to have the ability to pay the arrears in the future either. If you can't show that, then perhaps you might be able to obtain a temporary stay (ie. cessation) of the order, or you might be able to limit the current amount of arrears to be enforced.

8. Agreements to forego some or all child support: You will not likely be able to rely upon the support recipient's alleged statement that she did not want child support or that she agreed to take less than the table amount. While it is always good to have such statements in writing, the mere fact of the statement itself will not likely get you off the hook (even if it might help somewhat in negating what might otherwise appear to be "bad behavour").

9. Support Payor Delay: Did you delay bringing your Motion to Change? If so, and if you do not have a very good reason for the delay, you may very well have some difficulties in securing relief. It will help that even if you delayed, you nonetheless let the other parent know in writing what your changed circumstances were and that you will be seeking relief from the court. You should also have made timely (ie. yearly unless another time frame is stipulated in the earlier order) disclosure of everything that the Child Support Guidelines requires (and anything that the earlier order requires). For employed (as opposed to self-employed) individuals, that means at least your tax returns and Notices of Assessment and Reassessment (if any).

10. Support Recipient Delay: Delay in enforcing a child support claim is not an impediment to bringing an enforcement proceeding much later.

11. Child's Needs: Have the child's needs changed? Have the support recipient's needs changed? Remember, that child support is the "right of the child" and courts give weight to that principle. There is case law that tells us that child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together. (I take issue with this latter statement as some parents never lived together and the Child Support Guidelines do not always equalize standards of living. But just because I take issue that is not a reason for you to ignore principles in the case law.)

12. Was your behavior up to a high standard? Hopefully, here are some behavior standards that you should have lived by (and if not, you had best start behaving, in the legal sense, properly right now):

a. Make voluntary payments on arrears (no matter how little).

b. Cooperate with the Family Responsibility Office (ie. notify re change of address, respond to their inquiries in writing promptly, comply with any voluntary agreements re arrears payment).

c. Keep the support recipient fully informed of all factors that impact your changing income.

d. Fully comply with all financial disclosure requests.

e. Don't write intemperate things to the other parent saying that she or the kids do not deserve child support. Don't make threats. Don't complain. Be civil and businesslike. Always just stick to the facts without hyperbole.

f. If you believe a child is no longer eligible legally for child support, then ask for clarification and documents (in writing). If you have the evidence, then politely set out just how you would like to see the order changed and provide your evidence to prove your request. Once you have given this notice, allow a reasonable time for the other parent to respond but do not let the request for a change just sit. If there is no timely reply, then proceed to court with your Motion to Change and be sure to describe the efforts you made to secure a resolution outside of court.

g. Don't wait for the Family Responsibility Office to come after you before you start to take steps to change an order that is no longer appropriate. Take the initiative yourself. Document everything in writing. (Documenting in writing actually applies across the board to all of the suggestions that I have made in this article.)

13. Hardship: When the court considers whether or not it will retroactively rescind child support arrears or require the payment of substantial arrears, there are a number of factors that it will take into consideration. Try to stay on the right side of these factors:

a. The court will take a holistic and broad consideration of "hardship" when it determines what relief might be appropriate. That analysis may even extend to the situation of the parties' other children.

b. You cannot kill a parent and then throw yourself upon the court's mercy as an orphan. In other words, if you've engaged in legally bad behavior (see the above section), your hardship argument is not likely to gain too many legs.

c. Hardship to the support recipient is a relevant factor too.

d. Perhaps "hardship" can be ameliorated at the "remedy" stage. For example, rather than cancel all of the arrears, the court might delay enforcement of all or a part of the arrears.

e. As with all aspects of the case, you can't just make a bald allegation of "hardship". You need to present hard admissible evidence to prove your case.

14. Relationship with adult children: Where adult children do not have anything to do with their support payor parent, particularly where the support payor parent is blameless, some courts have tempered somewhat the full liability for support payable to adult children. There are many cases in this area of the law and it could be the subject of an entire article on its own.

15. Onus: Remember that when you bring a Motion to Change, the legal onus, or burden of proof, is on you. That principle applies equally to the support recipient as it does to the support payor.

Finally, you might want to read my 2015 blog post on retroactive child support as well.

Selected Sources

  • Filipich v. Filipich (1996), 26 R.F.L. (4th) 54, 92 O.A.C. 319, 1996 CarswellOnt 3263, (Ont. C.A.) [no CANLII citation available]

HERE IS THE ORIGINAL 1997 ARTICLE:

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:

  1. the nature of the obligation to support, whether contractual, statutory or judicial;
  2. the on-going financial capacity of the respondent spouse;
  3. the on-going need of the custodial parent and the dependent child; then, to a lesser degree and successively;
  4. 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;
  5. unreasonable and unexplained delay on the part of the respondent spouse in seeking appropriate relief from his obligation; and
  6. 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.

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