SUPPORT PAYOR ALMOST HAS A DUTY TO TAKE STEPS TO AMEND CHILD SUPPORT AMOUNT
There are many issues in support arrears cases that arise frequently but are discussed rarely. The case of Lewis v. Adesanya, 2014 ONCJ 326. The Honourable Justice Stanley B. Sherr provides some clarity.
- In March 2012 the Father was ordered to pay child support to the Mother based on an annual income of $33 700.00.
- In June 2012, the parties discussed quantum of child support;
- The Father earned $52,287 in 2012;
- In May 2013, the Father mailed to Mother a copy of his 2012 Income Tax Return. The Mother sent it back with the envelope unopened;
- September 2013 the Father brings a Motion to Change to increase his access; He is silent regarding the Child Support amounts.
- In the Response to the Motion to Change the Mother asks that Father’s ongoing child support rate be based on an income of $160 000.00 and that his child support rates from March 2012 until September 2013 should be adjusted to reflect the Father’s actual income.
- Father earned $140 727 in 2013.
- His pay stub dated March 7, 2014 showed a year-to-date income of $42 771. With that number, the projected income for 2014 was $247,000.
- Retroactive support orders should go back to when the recipient asked the support payor for either money or more money for support. Once the subject is broached, the payor cannot assume that the amount of support is fair; The payor must re-assess the situation.
- Blameworthy conduct cad increase or decrease the amount of retroactive support.
- The courts should use the actual past income of the support payor when calculating support arrears.
- Courts should use the current year’s income wherever possible in assessing ongoing support obligations.
Justice Sherr’s Orders that are of particular interest:
- Father’s failure to amend the support order to reflect his actual income was blameworthy conduct;
- Mother’s failure to inspect the Father’s 2012 income tax return in 2013 did not disentitled her to support. Justice Sherr used his discretion to dispense with the Father paying interest on the arrears;
- Although the Father wanted to base his retroactive child support rate on his prior year’s income Justice Sherr based the retroactive amounts on the known income for each year.
- Since the Father resided in Alberta, he used the child support table amount for Alberta.
- The Father claimed that he was given a significant amount of overtime in early 2014 and that he will ultimately not earn $160 000.00 for that year. Justice Sherr held, however, that the Father failed to provide any evidence from his employer to support this assertion and that the Father engaged in blameworthy conduct to misinform the court or delay making payments;
- Making the Father pay all of his arrears at once would cause him a disadvantage. He had another child and his debts exceeded his assets; The Father was to pay arrears at a rate of $1000 per month.If the Father’s ongoing child support payment was ever late by 30 days or more, the entire arrears amount was payable at once.
- The F.R.O. could still garnish money payable to the Father from the government even if the Father was complying with the Order.