►Woe the Mother (Recipient)

Victory v Victory (1988): The payor waited seven years to apply to cancel arrears and then in circumstances in which he had made no maintenance payments at all.

Recognizing that the "courts constantly struggle with the problems that are faced in these circumstances", Justice Hinkson nevertheless adopted these words in only reducing the $9,150 in arrears to $7,500:

"(T)he respondent has, by drawing on her capital and her income, met the requirements of her children in terms of their maintenance and has seen to their education. Because of the difficulties of alcoholism which were suffered by the appellant, he has not met those obligations.

"I think in these circumstances it would be unfair to continue the situation where a party not obligated to do so has met obligations to the children and relieved the party who has that obligation from his responsibility.

"This is not a case, in my view, where it can be said that there had been a hoarding of maintenance on the part of the respondent. It is not her maintenance that is being dealt with here, but rather the obligation of the appellant to maintain the two children of the marriage during the relevant period.

"To cancel arrears on a child maintenance order merely because that order, never sought to be varied, cannot at a moment in time be enforced, encourages a lack of diligent effort to pay in the hope that the more diligent parent will give up any attempt to enforce the order at whatever cost in lost savings and extra effort.

"If the Courts are to respect the principle that parents share equally the responsibility for the care of their children, no result should be permitted that gives any appearance of favouring a parent whose efforts to fulfill that responsibility have been less than those of the other who shoulders it by dint of energetic and sustained application of his or her resources."

►"But I Never Saw The Kid!"

Campbell v Campbell (1994): The Payor convinced the first level of Court that since he had been denied access, he ought not to pay child support. This was 1994 and the argument wasn't entirely as stupid as it sounds now. As poignant the issue upon which it was premised, the British Columbia Court of Appeal's words put an end to that argument:

"It is the obligation of the father to contribute to the proper maintenance of his child. If the court fails to vary maintenance payments so as to reflect the current cost of maintaining a ... child, it is the child who will bear the brunt of his mother's misconduct. In my opinion, child support is the right of a child and it may not be eroded or qualified by reason of the misconduct of the custodial parent.

"Clearly, the frustration of access does not entitle the respondent to fail to meet his obligation to pay child support."

►Full Disclosure! Full Disclosure!

Longstaff v Longstaff (1993): This was a somewhat typical arrears battle, with the Payor saying that he gave the recipient cash on an ad hoc basis and that time-honoured expression, as stated by Longstaff in his affidavit:

"The Plaintiff and I have always had an understanding between us that she would excuse maintenance payments for the children of the marriage as she knew my financial circumstances and that I was not even earning sufficient monies to support myself."

Thomas Longstaff made the rather stupid mistake of not exhibiting his tax returns at the hearing at which he asked the Court to cancel arrears, which brought the British Columbia Court of Appeal to remark, in a masterpiece of understatement:

"To meet the onus upon him, it was essential that the respondent make full disclosure of his means and financial circumstances."

Referring to the grossly unfair test in British Columbia (now §96 of the Family Relations Act), Justice Rowles wrote for the majority:

"The onus was on the respondent to show that it would be grossly unfair not to reduce or cancel arrears. If that onus was not met, the arrears could not be cancelled."

The respondent, creatively, if nothing else, then suggested to the Court that there was no real harm done in this case because the recipient was on welfare - social assistance. Saying that to the Court of Appeal showed real nerve but ....

"The respondent's argument that his failure to pay maintenance would not have been of financial detriment to the appellant, because of the statutory provisions limiting the amount of funds which may be received before social assistance is proportionately reduced, is unsupportable. Financial responsibility for the maintenance of children rests with their parents, not the public through income assistance."

For another case where the Court frowned on the suggestion of a set-off between voluntary cash or other gifts directly to the child, and arrears, see the Alberta Court of Appeal in Haisman v Haisman:

"When a mother has custody of a child and a court orders the father to make payments to the mother for the maintenance of that child, it is not open to him to make payments to the child instead. Nor is it open to him to buy things for the child and to claim that the amounts which he spends in this way should be deducted from the maintenance payments which he was ordered to make to the mother. In neither case has he complied with the order of the court."

More recently, in Opach v Lesnik (Ontario, 2006), the Ontario Court of Justice bluntly disposed of Jacek Orpach's application to "expunge all arrears". In reply, the mother (recipient) had moved to strike the application:

"Because of Mr. Opach’s willful lack of compliance with court orders for disclosure and for payment of child support over several years, the (Recipient)’s motion .., should be granted.  Not to do so would bring the justice system into disrepute, because Mr. Opach would cause more court time to be consumed.  His motion to (expunge all arrears) could have been dealt with expeditiously in 2003 when it commenced, if he had had the candor that he should have had as an honest litigant.

"All arrears ...are still outstanding and should be collected....".

►"So, how much have you paid?"

Arnold v Arnold (1995): In this case, Leonard Arnold showed up in Supreme Court in 1993 to cancel arrears - he had paid $0.00 since the support order of 1969 -  alleging that not doing so would be grossly unfair to him.

His conduct, in paying nothing, ended up being fatal to his case:

"(I)t is his ... parental obligation for the maintenance of the children which is under scrutiny by the court ... the efforts the applicant has made to comply with the maintenance order. In the case at bar the respondent has never paid any child maintenance, although he clearly could have done so, and simply has no explanation, reasonable or otherwise, for failing to do so. In my opinion this is an important factor in the case at bar.

"... the emphasis should have been on the conduct of the respondent. When this is done, and undue emphasis is not given the respondent's current financial and work situations, which factually are not hopeless, and therefore should not be determinative, the inescapable conclusion is that the respondent has fallen far short of discharging the onus upon him, of satisfying the court that it would be grossly unfair not to reduce the arrears of child maintenance. The evidence, in my view, is to the contrary, although it is not necessary to this decision, viz. it would be grossly unfair were this court to reduce the arrears of child maintenance in the circumstances of this case."

►The Secret Deal

Cherry v Cherry (1996): In this case, arrears were $14,929 and Mr. Cherry had made "little or no payment over a long period of time". But Mr. Cherry said that he had a private agreement with the recipient, which did not impress the Court, which then went on to succinctly state many of the primary principles of judicial treatment of applications to cancel or reduce arrears:

"(B)oth parents have a legal obligation to support their children. The right to child support belongs to the child and not to the custodial parent.

"Delay in enforcing the child's right to support is not generally a relevant factor because the child cannot waive his or her right to support nor can the custodial parent waive those rights on the child's behalf.

"Changed circumstances from the time of earlier orders must be taken into account, but responsibility for a second family cannot relieve the parent against whom the order is sought of his or her statutory obligation to support the first family.

"There is a substantial onus on the applicant seeking a reduction or a cancellation of arrears to show that there has been a significant change in circumstances.

"The courts are generally slow to reduce or to cancel arrears."

For a similar case which nicely summarizes the law, see Earle v Earle (see The Kitchen Sink! below) where Justice Martinson adds:

"... (P)arents have a legal obligation to earn as much as they are capable of earning to meet their obligations to support their children."

►Forgiveness

Seon v. McCallum-Seon (2000): In this Saskatchewan, the Payor, Michael Rueben Seon caught a 'judicial break' with arrears being reduced from over $16,000 to just $2,000, with the Court using words that seemed to defy the wisdom and zero-tolerance of both the statutes and the prevailing jurisprudence:

"Even with the financial assistance of his current wife, the appellant cannot pay the accumulated arrears. The best he has been able to do -- and this took some coaxing on our part and some effort on his -- is to come up with the $2,000.00. He has neither the capital nor the income to do more. Nor is he likely in the future to have the means to pay down any more than this. Besides, the original order under which the arrears accumulated probably ought to have been varied long ago. It was varied temporarily for fixed periods because of the appellant's financial circumstances. Beyond that, however, it was not varied in the expectation, apparently, that leaving the order as it was would induce him to find more profitable work. Nothing has had that effect.

"In the circumstances it is senseless to continue the arrears. The only realistic thing to do is cancel them. The appellant has apparently maintained a good relationship with his son throughout, contributing to his support directly, on an ad hoc basis, and contributing to his well-being in other less tangible ways. The point is that he appears to be a good father but does not have the drive to earn the kind of income he seems capable of earning were he to put his mind to it."

 Even BC's grumpy Court of Appeal (as far as child support arrears applications go!) has had moments of softness such as in Daniel v Daniel or in Fairbanks v Fairbanks where the Court, in 1998, recognized the financial responsibility but dared to suggest that it be "tempered with realism".

►"But Judge, I'm A Drunk!"

Dorash v Dorash (2004): Wayne Dorash asked to be excused from arrears, claiming that he suffered from anxiety, depression, alcoholism and marijuana use. The Court didn't bite:

"I cannot conclude that Mr. Dorosh’s generalized anxiety and depression disorder is beyond his own control—that is, ...incurable. He is not hopelessly addicted and never has been. If that were so, I would equate such hopeless addiction as a debilitating illness which precluded Mr. Dorosh from working and thereby earning a livelihood by which he could contribute to the support of his daughter. If that were the case, I would have canceled the accumulated arrears because Mr. Dorosh’s illness was beyond his control. However, the evidence ... is that Mr. Dorosh still has power over his own destiny and could choose to help himself by eliminating alcohol and marijuana use.

"Mr. Dorosh’s health nemesis must be examined in light of the law regarding rescission of child supportarrears. The burden of proof or onus to show that nonpayment of child support over the time the arrears accrued was the consequence of matters over which he had little or no control lies upon the applicant/payor, Mr. Dorosh."

►Intentionally Underemployed

Lalonde v Lalonde (2005): An application to cancel or reduce arrears often involves analysis of the Child Support Guidelines which allow the Court to impute income where the Payor is intentionally unemployed or underemployed. In this Ontario case, Boyd Lalonde's application to cancel arrears met with an abrupt judicial response. Once again, there was an absence of tax returns and the Court further noted that Mr. Lalonde was "physically healthy and does not suffer from any medical impairments" and there had been "two trips to Cancun Mexico, a Caribbean Cruise and a trip to California".

Yikes!

That must of been a difficult trial for the Justice DiTomaso to sit through and be still ... until judgment time, anyway:

"Throughout this trial, Mr. Lalonde has maintained that he wants to be part of his son’s life.... Being part of Patrick’s life also means accepting and fulfilling the financial obligations that come with parenthood.  Being part of Patrick’s life means having to pay outstanding child support.  I am not satisfied that there has been any material change in circumstance that would eliminate outstanding child supportarrears.  I do not accept the reasons given by Mr. Lalonde for eliminating outstanding arrears.  Those reasons are not legitimate and are at the very least, self-serving.  Child supportarrears continue to be outstanding and fixed in the amount of $22,067.00.  These arrears are to be paid by Mr. Lalonde.  Therefore, his claim to eliminate child supportarrears is dismissed."

►Payment Schedule

Nelson v Nelson (2005): Whether arrears are maintained on an application to cancel, or reduced, it is not uncommon for the court to lend a sympathetic ear to a request for a payment schedule, so that the Payor does not face the seizure and liquidation of his or her assets by the recipient or her/his support enforcement agent (such as provincial support or maintenance enforcement agencies).

Nelson is a representative sample of this type of judgment. The Nova Scotia court had at bar a case involving arrears owing to an adult child; a child over the age of majority. In reducing arrears. The court set arrears and made it payable to the adult child directly as follows::

"... child support that remains outstanding and unpaid shall be the sum of $3,000.00, which sum shall be made payable to Mariah, through the Maintenance Enforcement program at the rate of $125.00 per month commencing January 1, 2005, and continuing monthly thereafter for 24 months or until paid in full.

►The Kitchen Sink

Earle v Earle (1999): For better or for worse (gotta love the civil law/codifier touch!) - Justice Martinson took the trouble to not just decide the case before her, but to do the family law bar a favour and list what she calls the "basic (legal) principles" of the law of arrears:

"There is a heavy duty on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long lasting change in circumstances.  Arrears will not be reduced or canceled unless it is grossly unfair not to do so.

"If arrears are not reduced or canceled, the court can order a payment plan over time if convinced the arrears cannot be paid right away.

"
Arrears will only be canceled if the person is unable to pay now and will be unable to pay in the future. 

"A reduction or a cancellation requires detailed and full financial disclosure, under oath ... that at the time the payments were to be made: the change was significant and long lasting; the change was real and not one of choice; and, every effort was made to earn money (or more money) during the time in question, and those efforts were not successful.

"Responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family.

"Delay in enforcement is generally not a legal basis to cancel or reduce
child supportarrears.

"Judges will not cancel
arrears (just) because the other party gets a lot of money at once.  Otherwise, people would be encouraged to not pay maintenance and rewarded for not paying maintenance.

"Judges will not cancel arrears because the children were looked after in spite of the non payment.

"Nor will judges cancel arrears because the children no longer need the money.  The children should be compensated for what they missed.

"An agreement between parents that the maintenance for the children does not have to be paid will not be considered.

"Lack of access between a parent and child is not a legal reason to reduce or cancel arrears.

"Judges will not reduce or cancel arrears because other money has been spent to buy things for the hildren.

"The fact that a person did not have legal advice when the order was made or during the time when the arrears added up, is not, by itself, a reason to reduce or cancel arrears."

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