Month: March 2023

“When considering whether to retroactively vary the father’s child support obligations and rescind his arrears, I have to balance three interests to achieve a fair result:

1. 1. 1. 1. The children’s interest in receiving the appropriate amount of support to which they are entitled;
         2. The interest of the parties and the children in certainty and predictability; and
         3. The need for flexibility to ensure a just result in light of fluctuations in the father’s income.

The legal principles applicable to this analysis have been very recently reviewed and set out by the Supreme Court of Canada in Colucci v. Colucci, 2021 SCC 24.  Even though that particular case was decided pursuant s. 17 of the Divorce Act, it is equally applicable to similar requests, such as this one, being made under our provincial legislation. The Court summarized those principles as follows:

[113] To summarize, where the payor applies under s. 17 of the Divorce Act to retroactively decrease child support, the following analysis applies:

(1) The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice.

(2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.

(3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.

(4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.

(5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

…

[138] Accordingly, in this third category of cases [where the prior order corresponds with the payor’s income], the payor must overcome a presumption against rescinding any part of the arrears. The presumption will only be rebutted where the payor parent establishes on a balance of probabilities that — even with a flexible payment plan — they cannot and will not ever be able to pay the arrears (Earle, at para. 26; Corcios, at para. 55; Gray, at para. 58). Present inability to pay does not, in itself, foreclose the prospect of future ability to pay, although it may justify a temporary suspension of arrears (Haisman, at para. 26). This presumption ensures rescission is a last resort available only where suspension or other creative payment options are inadequate to address the prejudice to the payor. It also encourages payors to keep up with their support obligations rather than allowing arrears to accumulate in the hopes that the courts will grant relief if the amount becomes sufficiently large. Arrears are a “valid debt that must be paid, similar to any other financial obligation”, regardless of whether the quantum is significant (Bakht et al., at p. 550).

. . .

[141] While the presumption in favour of enforcing arrears may be rebutted in “unusual circumstances” (Gray, at para. 53), the standard should remain a stringent one. Rescission of arrears based solely on current financial incapacity should not be ordered lightly. It is a last resort in exceptional cases, such as where the payor suffers a “catastrophic injury” (Gray, at para. 53, citing Tremblay v. Daley, 2012 ONCA 780, 23 R.F.L. (7th) 91). I agree with Ms. Colucci that the availability of rescission would otherwise become an “open invitation to intentionally avoid one’s legal obligations” (Haisman (Q.B.), at para. 18, citing Schmidt v. Schmidt (1985), 1985 CanLII 3777 (MB QB), 46 R.F.L. (2d) 71 (Man. Q.B.), at p. 73; R.F., at para. 57). Simply stated, how many payors would pay in full when the amounts come due if they can expect to pay less later? The rule should not allow or encourage debtors to wait out their obligations or subvert statutory enforcement regimes that recognize child support arrears as debts to be taken seriously. [emphasis added]”

         Savage v. Kaczmarek, 2022 ONSC 1313 (CanLII) at 14

“The fact that an adult child is undertaking educational studies may constitute “other cause” within the meaning of s. 2(1) of the Divorce Act. In Menegaldo, at para. 157, Chappel J. summarized several factors that courts have considered in answering the question of whether an adult child pursuing post-secondary educational programs remains a child of the marriage:

1. 1. 1. 1. 1. Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.
            2. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.
            3. The ability of the child to contribute to their own support through part time employment.
            4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.
            5. In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.
            6. The child’s academic performance, and whether the child is demonstrating success in the chosen course of studies.
            7. The age, qualifications and experience of the child.
            8. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
            9. Whether the child is performing well in the chosen course of studies.
            10. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.
            11. The means, needs and other circumstances of the parents and the child.
            12. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.

While none of these factors is determinative, the first factor – whether the child is in fact enrolled in a course of studies – is of central importance.”

            Edwards v. Edwards, 2021 ONSC 1550 (CanLII) at 34-35

“The Court has the jurisdiction to vary interim support orders.

In Lipson v. Lipson, 1972 CanLII 470 (ON CA), [1972] 3 O.R. 403, the Court of Appeal directed that motions to vary interim spousal support orders “were not to be encouraged and that it would take a substantial change in the circumstances before such an application would be permitted.”

As explained by the Supreme Court of Canada in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, a motion to vary is neither an appeal nor an opportunity to re-litigate the prevailing Order.  A motion to vary proceeds on the basis that the prevailing order was correct when it was made.

The parties provided case law setting out a variety of considerations which should be taken into account in determining whether a variation of an interim support order should be made including: a) whether the failure to vary the Order would cause the payor to suffer undue hardship; and b) whether continuation of the Order would be incongruous or absurd; Ciarlariello v. Iuele-Ciarlariello, 2012 ONSC 6636 at para 30 citing Pakka v. Nygard, 2004 CanLII 5071 (ON SC), [2004] O.J. No. 100 (Ont.S.C.J.) at para 5.  The test is not whether I would have made the same Order.

As stated by Justice Chappel in Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 (Ont.S.C.J.):

20 The test that applied on a motion to vary a temporary spousal support order has evolved within the parameters of the general principle that parties in matrimonial proceedings should be encouraged to advance their case to trial as soon as possible. Using this foundational principle, the Ontario Court of Appeal determined in Lipson v. Lipson that proceedings to vary interim support orders should not be encouraged. It held that in order to succeed on a motion to change a temporary spousal support order, a party must establish that there has been a substantial change in circumstances since the previous temporary order was made. Variation proceedings relating to temporary orders should not become the focus of the parties’ litigation. The onus on a party who seeks to vary a temporary support order rather than waiting until trial is a heavy one.”

            Albaum v. Albaum, 2022 ONSC 1300 (CanLII) at 5-9