Case reference: Park v. Thompson, 2005 CanLII 14132 (ON CA)
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Family law — Support — Child support — Application judge failing to take appropriate considerations into account in ordering retroactive child support — Application judge failing to consider whether table amount was inappropriate within meaning of s. 3(2)(b) of Guidelines where child had turned 18 and was attending university in another city — Application judge erring in ordering father to pay certain expenses under s. 7 of Guidelines in absence of adequate evidence — Father’s appeal allowed and trial of those issues ordered — Child Support Guidelines, O. Reg. 391/97, ss. 3(2), 7.
The parties separated in 1999 and entered into a separation agreement. They agreed to a child support arrangement that involved contribution to a joint bank account for the benefit of their child. They expressly opted out of the Child Support Guidelines, O. Reg. 391/97, but the agreement provided that if either party failed to pay the amounts required by the agreement, the other party might refer the issue of child support for determination by a court pursuant to the Family Law Act, R.S.O. 1990, c. F.3 and the Guidelines. The child, who turned 18 in August 2004, had refused to communicate with the father since April 2001. As of November 2002, the father refused to pay anything further towards the child’s expenses until she agreed to attend counselling. The child refused. The mother brought an application for child support in December 2003. Although she had retained counsel, she had not made any demand of the father between November 2002 and December 2003 that he comply with his contractual obligation to make payments into the account. The application judge [page602] ordered the father to pay the table amount of child support in accordance with the Guidelines retroactive to November 2002. The application judge also found that all the extraordinary expenses claimed by the mother were reasonable. In particular, he found that a school trip to Japan, a trip to England to consider university education, club fees and fees for a cell phone were not inappropriate at the income level enjoyed by the parties. At the time of the application, the child was enrolled in university and was living in another city. The application judge ordered the father to pay ongoing support in the full table amounts in accordance with the Guidelines and his pro-rated share of the tuition fees. The father appealed.
Held, the appeal should be allowed.
The jurisdiction to award retroactive child support is to be exercised sparingly. The factors favouring the making of a retroactive order are: the need on the part of the child and corresponding ability to pay on the part of the non-custodial parent; some blameworthy conduct on the part of the non- custodial parent, such as incomplete or misleading financial disclosure; need on the part of the custodial parent to encroach on capital or incur debt; an excuse for the delay in bringing the application; and notice to the payor parent of an intention to pursue support. Those factors mitigating against a retroactive order are: the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such a burden would interfere with ongoing support obligations; the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and a significant, unexplained delay in bringing the application. In this case, the record did no t support the application judge’s finding that the delay was not unreasonable because the father knew that a claim for child support would be pursued. Moreover, although the facts that the child was attending a private school and the father’s pre- existing contractual agreement to pay child support were important factors relating to the question of need, the application judge did not consider any of the other relevant factors such as whether the mother had been required to encroach on capital or incur debt. Most importantly, he did not consider the father’s present ability to pay given the responsibilities of his new family and whether, in all of the circumstances, an order for retroactive child support would cause an unfair burden on the father. In those circumstances, the order for retroactive child support could not stand.
There was insufficient evidence on the record to support the application judge’s conclusions with respect to the extraordinary expenses claimed by the mother. Moreover, the application judge did not take into account that the father had not been consulted about any of the expenses before they were incurred, the possible contribution of the child to the expenses, and any available tax credits. Section 7 of the Guidelines required the judge to take these matters into account in determining the amount of the expenses.
Before ordering the father to pay the full table amounts for child support notwithstanding that the child was now 18 years of age and attending university in another city, the application judge should have considered the provisions of s. 3(2) of the Guidelines. He erred in failing to consider whether the table amount was inappropriate within the meaning of s. 3(2)(b).
The appropriate order was to direct a trial of the outstanding issues.
*source: Canlii
