Family Law Case Review – Retroactive Child Support

BLF v SMF, 2014 ABQB 69

SUMMARY OF THE FACTS

The Mother and the Father were married in 1997 and a Divorce Judgment was granted in July of 2007. The Father had been served with the Statement of Claim for Divorce but failed to respond. The Divorce Judgment gave the Mother sole custody of the parties’ 3 children and permitted her to relocate to Australia with the children. The Divorce Judgment ordered that the Father pay to the Mother child support of $1,503 per month, $281 per month for additional expenses, and $200 per month in spousal support, based on a guideline income of $79,600 for the Father and $3,390 for the Mother. The younger 2 of the 3 children live with the Mother in Australia. The oldest of the 3 children had behavioral and psychological issues.

On November 22, 2012, the oldest of the 3 children moved back to Canada with the Father. The Father’s job required shift work and out of town rotations. The Father indicated that he had to resign from his job in April 2013 to stay closer to the oldest child. He had earned $38,395.86 from the beginning of the year to the time he resigned in April 2013. The Father advised the Court that his income for 2013 was $84,000. After he resigned, the Father tried to obtain employment. He stated that due to the nature of his qualifications and the economic climate at the time, he had difficulty finding a permanent position. The Father applied for employment insurance but was denied.

The Father was able to secure employment starting on October 1, 2013, although the Mother indicated that the Father secured this employment in September of 2013.

The Father’s income during the last 3 years was as follows: 2011: $158,591 2012: $170,425 2013: $84,000

The Mother’s income during the last 2 years was as follows:

2012: $34,703.01 Australian Dollars = $32,950.31 CAD 2013: $32,434.15 Australian Dollars = $30,795.00 CAD (estimated).

On August 26, 2013, Justice R.E. Nation granted an order that suspended the payment of child support by the father pending a special chambers application. As well, that order stated that if the Father “obtains any employment or income after September 1, 2013 he shall provide full disclosure of the same to his counsel within one week.” The father’s counsel was then to convey that information to the Mother’s counsel. The Father has not complied with this requirement even though he secured employment somewhere between September and October of 2013.

DECISION

The Mother brought application to vacate the existing court order and to obtain retroactive child support. Justice K.D. Yamauchi Ordered retroactive child support and ongoing child support and considered the following factors in awarding retroactive child support:

  1. Whether there was a reasonable excuse for Mother’s delay in seeking increased support.
  2. The conduct of Father. In this case the payor Father did not comply with the Divorce Judgment or the Order of Justice R.E. Nation in that he did not disclose material changes in his financial circumstances.
  3. The circumstances of children.  In this case the children would benefit from the retroactive support.
  4. Whether retroactive award would cause undue hardship on Father.

COMMENT

This decision is an excellent example of what can happen at trial when parties don’t follow existing Court Orders to pay or disclose financial information and changes to income as directed by the Court. Engaging in blameworthy conduct may lead to an award of retroactive child support.