Articles
Finishing a Child Support Marathon
by Carla Courtenay, Barrister and Solicitor 
One of our clients came to us in her last lap of a marathon, in this case of 26 years. She was owed over $70,000 in arrears of child support. Her former husband had cornered the definition of "dead beat dad" (the "DBD") because these arrears had accumulated since 1984! She had one of the oldest files still considered active with the Family Maintenance Enforcement Program (FMEP).
FMEP served an attachment notice to collect the sum from the inheritance of DBD shortly after his mother died. After over 20 years of promising to pay, and paying little, DBD decided to now apply to the Supreme Court to cancel the arrears. (So all those years of saying he wasn't paying because he couldn't became a request to a Judge to prevent the payment when he could.)
The two parents are now in their sixties; the two children are young adults and were both under 4 years when the parties separated. Mom had worked steadily all the years, full time, and carefully managed her money. She has a house and savings and a pension. The DBD had an unclear employment record, failed at some business ventures, had two more children, gone bankrupt twice along the way, and suffered from serious health issues. He has no assets except his inheritance, and inadequate health care and retirement plans. The Judge called them "a study in contrasts".
There are always wrinkles in a case. In this one, the DBD had poor health making it impossible to expect him to find any employment. His inheritance included a mortgage-free condo and some cash, but not enough to see him out. His mother who was close to the two children, gave to each of them a generous bequest, effectively reducing the estate left to her son. And, over the years, the FMEP had repeatedly brought DBD back before a court to order terms of repayment, seizure of motor vehicle licence, and other devices to obtain collection. Each court had made orders in the presence of DBD, and each order confirmed the existence and the amount of the arrears. The mother had never neglected her claim and had always cooperated with any collection efforts FMEP made.
The FMEP has a legal mandate from the Provincial government to collect maintenance ordered by a Court. However, if a Court is being asked to change or cancel the order for maintenance, FMEP is not involved. They wait until there is a new order and then they will enforce that one. Our client had to be represented in court to defend her claim for the arrears.
We argued that child support arrears are a debt owed to the person who had to adjust their life so as to satisfy both their own and the other parent's legal obligation to pay for the children they brought into the world. We said it is irrelevant how things worked out for the two parents, and how well one does compared to another. This is a debt like any other arising from a Court's Order. The law does permit a Court to cancel or reduce arrears but only if it would be "grossly unfair" not to do so. Here, not canceling the arrears left the DBD with the consequences of his life choices and poor planning and the consequences were foreseeable. That's fair. It also left him with a legal obligation he had been reminded of over and over again by our legal system. Is it unfair to let the expected result in fact occur? For the DBD it was argued that compassion dictated that the arrears be cancelled or reduced because of the health prognosis and the better circumstances of the children's mother.
The Judge decided that the arrears should be collected from the inheritance in order to respect the numerous previous orders made by other Judges in the collection efforts. He permitted, however, a reduction of the interest charges over the years since the DBD's health problems arose.
As for the wrinkle of the grandmother's bequests to the two children, the Judge said this:
" I have considered whether the amounts allocated by the respondent's mother to each of the children should factor into the analysis. The respondent's mother had her reasons for doing what she did. She did not, for instance, simply leave all of her estate to the respondent on the theory that the children would benefit upon the respondent's passing. In the context of this proceeding, I accept that she was entitled to her views, and that her generosity should not be considered a collateral way of discharging the respondent's responsibilities."
All of our clients say of being in the legal process: "I'll be glad when this is over". This one is entitled to more gladness than most!
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