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Failure to Pay Child Support Can be a Significant Factor Regarding your Access to the Child

by Daniel Gloade on May 20, 2016

There was a court order in place placing the children with the Mother and the Father to have access every second weekend.  The Father was also to pay child support.  Both parties resided in Ontario at the time of the court Order.

The subject of this court decision is the Mother’s motion to change this court order in two important respects.

The first issue was that Mother wanted Father’s child support payments to be increased to reflect the Father’s increased wages.  In 2013, the Father got a job as a forklift operator and his wages increased from $21600 to $41800 per year. The Father did not tell the Mother of his increased wages and did not give the Mother his income tax returns as required by statute.  The Father had a history of ignoring child support orders.

Failure to pay support had a direct impact on the Mother and the children.  Between the final custody order and this motion to change, the Mother was attending nursing school and working part-time jobs to make ends meet.  The Mother failed her first attempt at the qualifying nursing examinations.  Also, she borrowed $23 000 from her parents.

The parties largely resolved the issue before they had to appear before Justice Sherr.  The parties agreed to the ongoing child support amount.  They also agreed that the Father owed $14 184.00.  This amount was the underpayment of child support from 2012 to February 2016.

The second issue was the Mother’s desire  for both her and the children to reside at the maternal grandmother’s house in British Columbia.  The Mother’s reasons for the move are:

  • Job offer in British Columbia
  • Free daycare (grandmother will care for children)
  • Maternal Grandmother of ill-health
  • Grandmother’s house was preferable to public housing

The Mother offered a plan where the Father had access for six weeks in the summer and 10 days during the Christmas Break.

The Father disagreed with the plan; he argued that it did not give him enough time with the children.

The Honourable Justice Sherr held that the Father’s failure to pay child support showed that he was immature and was not thinking of the children’s best interests.   He ordered that the Mother could move to British Columbia as per her plan.

The decision is called H.A. v. M.M., 2016 ONCJ 246 (CanLII) can you can read it here.

This decision does not stand for the proposition that being in arrears of child support prejudices your claim for access to the children.  I believe that Justice Sherr was saying that the Father’s attempts to avoid child support was evidence that the Father was unable or unwilling to put the children’s best interests first.

In any child access case, failure to pay child support will reflect badly on the payer and his or her claim for increased access.  That is the reality.  I have not seen this connection so explicitly and prominently used until I have read this decision, however.

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