SOME GUIDANCE ON LONG-DELAYED MOTIONS TO CHANGE
Many family law matters end with a final Order that requires one party (payor) to pay support (spousal or child) to the other party (recipient) at a monthly rate based on the payor’ income at that time. Frequently, however, the payor’s income decreases. The support payor is unable to make the monthly payment and arrears accumulate.
Both parties can easily file a consent Motion to Change the last Order. There are two reasons why this rarely happens, however:
- It means that the support recipient must agree that he or she is entitled to less money that what is currently ordered. It is therefore incredibly difficult to get a consent motion, particularly if there is continued anger from the support recipient;
- Often parties don’t know how to file a Consent Motion to Change and they wish to avoid court.
The support payor can bring a contested Motion to Court. Given that support payments are based on income, many believe that motions to change are simple math calculations. Unfortunately, there are two random variables.
- What support amount should be granted if the support payor’s income is erratic or likely to change in the near future?
- The support recipient often responds by asking for compensation for section 7 expenses. Frequently, the support recipient’s responding materials is the support payor’s first notice that such expenses exist.
The support payor complains that it is unfair to expect him or her to pay past section 7 expenses because
- The support payor had no input regarding whether these expenses should be incurred; and
- Having an added, unforeseen expense makes it difficult for financial planning.
In the case of Allaire (Lavergne) v. Lavergne the Honourable Mr. Justice Robert Laliberté provided further guidance as to what to do.
In this case, the Father wanted to change a court order dated October 2003 which required him to pay spousal support to the Mother. The Father argued that after 2003 he lost his prior job (he claims wrongful dismissal) and obtained another job with less pay. The general problem, however, was that there was great fluctuation in the Father’s income every year.
Justice Laliberté calculated the Father’s average income using the Father’s income at 2000, 2001 and 2002. This shows the Father’s average income at the time of the 2003 Order. Justice Laliberté then calculated the amount of the Father’s income that would be allocated to pay spousal support. In the original court Order, the spousal support payments were 20% of the Father’s total income.
Justice Laliberté did the same calculation using the Father’s income for the last three years prior to the motion to change. Once he had an average, he calculated that the spousal support payments from the 2003 Order would be approximately 31% of the Father’s income. His Honour then reset the spousal support to be 20% of the Father’s current average income.
The Mother asked for compensation for the son’s section 7 expenses. His Honour held that the following types of expenses are reasonably incurred to pursue a post-secondary education:
Justice Laliberté then calculated the reasonable amount for each of these expenses.
Finally, he had to decide upon the appropriate portion of these expenses that the Father had to pay.
- The expenses were necessary in relation to the child’s best interests;
- The expenses are reasonable in relation to the means of the parties;
- The family’s spending pattern and lifestyle prior to the separation;
- The fact that the Mother delayed in requesting financial support from the Father and the financial burden which stems from this delay;
- The Father’s average income and the Mother’s imputed income for section 7, provides for the following proposition:
- The fact that the child benefited from bursaries;
- The fact that the child worked prior to attending the program and could have contributed to the expenses;
- The unfortunate fact that there has been no relationship between the child and the Father.
His Honour held that the Father was responsible for 65% of the cost for post-secondary education. Please not that this is less than the strict ratio of the parties’ incomes, as prescribed by the Child Support Guidelines.
You can find the complete text of the case here: Allaire (Lavergne) v. Lavergne, 2014 ONSC 3653