How Do You Cancel Child Support? A recent Ontario decision of Kerr v. Moussa, 2023 ONCJ 1 sets out a nice restatement of the law on this point.
Our Vancouver, Victoria, Kelowna, Surrey and Calgary child support lawyers get asked: How Do You Cancel Child Support? frequently. The test to do so is stringent, and for good reason. Our Vancouver child support arrears lawyers have handled hundreds of these cases over the past 40 years. Contact us to learn how to cancel or reduce child support and how to oppose such claims.
Vancouver How Do You Cancel Child Support Lawyers 604 602 9000
So, How Do You Cancel Child Support? What does the court need to conclude to win these court cases?
In the recent Ontario case the Justice dismissed the father’s application on the basis he had not proven his claim to cancel and reduce child support and because he made no:
- effort to look for work;
- effort to retrain or go back to school to upgrade his education; and
- attempts to follow medical advice to obtain surgery to relieve his back pain.
How Do You Cancel Child Support?
How Do You Cancel Child Support cases require the courts to apply the test set by the SCC decision of Colucci, which set out the following law on retroactive reduction of child support arrears:
In this category of cases, the prior child support order or agreement corresponds with the payor’s income. The arrears accurately reflect the amount of support that the payor should have paid under the Guidelines, after all considerations, including any claim of hardship under s. 10, have been determined. In other words, the arrears represent sums that could have been paid at the time payments came due, but were not. The payor parent’s claim for rescission is thus a form of “hardship” application, in which there has been no past change in circumstances justifying a retroactive decrease in the support obligation. See: paragraph 134.
Under this category of cases, the payor’s ongoing financial capacity is the only relevant factor. The payor must therefore provide sufficient reliable evidence to enable the court to assess their current and prospective financial circumstances, including their employment prospects and any assets, pensions, inheritances or other potential sources of future capacity to pay. See: paragraph 135.
In this category of cases, 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. 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. 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. See: paragraph 138.
While the presumption in favour of enforcing arrears may be rebutted in “unusual circumstances”, 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. See: paragraph 1
So what did the Court do in this case involving How Do You Reduce Child Support? The court decided the father failed to meet the stringent onus and income he could earn if he made reasonable efforts to do so was imputed to him as income he could earn. Remember income is set on what someone can really earn not what they earn if they deliberately try to ignore their duty to properly support their spouse or children. Recipient spouses do not get a free pass either because children deserve to be properly supported by both parents.
Imputing Income In Child Support Cancellation Applications 604 602 9000
The Ontario Justice refused to cancel arrears because father could have worked and summarized the law which is similar to what applies in BC and Alberta ( note you do not gave to be deliberately underemployed for imputation to occur):
[110]The jurisprudence for imputation of income sets out the following:
- a) Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731(Ont. C.A.).
- b) The Ontario Court of Appeal in Drygala v. Pauliset out the following three questions which should be answered by a court in considering a request to impute income:
(i) Is the party intentionally under-employed or unemployed?
(ii) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?
(iii) If not, what income is appropriately imputed?
- c) The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322 (CanLII), [2009] O.J. No. 1552. (Ont. C.A.).
- d) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima faciecase, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
- e) As a general rule,separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 CanLII 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).
- f) The receipt of ODSP or Workplace Safety and Insurance Board benefits is not sufficient proof of one’s inability to work for support purposes. See: Tyrrell v. Tyrrell, 2017 ONSC 6499. The court cannot take judicial notice of any eligibility requirements for ODSP. Nor can it delegate the important and complex determinations of employability and income earning capacity to unknown bureaucrats applying unknown evidence to unknown criteria. See: Abumatar v. Hamda, 2021 ONSC 2165.
- g) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.
- h) The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli,2006 CanLII 34451 (ON SC), [2006] O.J. No. 4142 (SCJ.). Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton 2005 CanLII 1063 (ON SC), [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen 2006 CanLII 24124 (ON SC), [2006] O.J. No. 2902 (SCJ).
- i) Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.
- j) Even if the court accepts that the party has health-related challenges that may impact their income earning capacity, it must consider the nature and extent of the impact and whether the party could work on a part-time basis or in a less demanding position. See: Bentley v. Bentley, 2009 CarswellOnt 562 (S.C.J.); Kinsella v. Mills, 2020 ONSC 4785.
- k) The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson,2006 CanLII 26573 (ONCA).
- l) In the current economy, courts should not default to making assumptions that people can earn a minimum wage income at full-time hours. The reality is that there are now far more part-time workers that come before the court. See: M.B. v. B.P.G.,2018 ONCJ 435.
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If you are wondering How Do You Reduce Child Support? Call us across Bc and Alberta propmptly before arrears build up and the task for cancelling them becomes more difficult. Nothing gets better in a family case when people procrastinate and it can cost thousands of dollars if you wait.
