BACKGROUND

The parties separated in 2015, and they have one child of the marriage (“the Child”). The Respondent's father has not paid child support for the Child since separation.

In her original Application, the Applicant's mother only sought an uncontested divorce. It was not until the Respondent's father made substantive claims in his Answer that the Applicant brought a claim for child support on July 31, 2019, in her reply.

In November 2019, the Court issued an order (the “Nieckarz Order”), whereby paragraph 3 is a preservation order which prohibited the encumbrance or disposition of the former matrimonial home.

ISSUES

1. When should temporary retroactive child support commence?
2. Should paragraph 3 of the Nieckarz Order be terminated or varied to allow the Mother to sell the home?

ANALYSIS

1. When should temporary retroactive child support commence?

The Respondent's father argued that he should not be ordered to pay child support prior to August 1, 2023. He claimed that between 2015 and 2019 he had at least 40% parenting time with the Child, so there should be set-off child support until July 2019. The Respondent further alleged that after July 2019, the Applicant's mother unilaterally cut down on his parenting time.

The Respondent also claimed that he could not pay child support between April 2020 and July 2023 due to COVID-19’s impact on his business, which ultimately shut down. Further, he was the sole caregiver to his mother, who was diagnosed with cancer.

The Respondent further argued that he would suffer undue hardship if he were required to pay retroactive child support prior to August 1, 2023, since he has significant debts.

The Respondent admitted that his income beginning August 2023 was approximately $60,000 and that he was prepared to use this income for child support purposes effective August 1, 2023.

The Law

Section 15.1(1) of the Divorce Act (“the Act”) states that “[a] court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.”

In determining a request for retroactive child support, courts are to consider 4 factors: (1) the claimant’s delay in bringing a claim; (2) blameworthy payor conduct; (3) the child’s circumstances; and (4) potential hardship to the payor if an order for retroactive support is made.

The Court explained that “blameworthy conduct” is “any conduct that has the effect of privileging [the payor’s] interests over the child’s right to support.” 2 potential forms of blameworthy conduct are (1) refusal to pay support when it is merited, and (2) a failure to provide income disclosure.

The Court also noted that there is a presumption that retroactive child support will not commence more than 3 years from the date of effective notice of claim. However, courts have the discretion to depart from this presumption where the result would be otherwise unfair.

Applying the Law

The Court determined that the Applicant’s claim for child support in July 2019 represented effective notice of claim because it indicated to the Respondent that child support should be paid.

After July 2019, the Child lived primarily with the Applicant's mother; thus, the Respondent's father owed child support. While the Respondent alleged that the Applicant unilaterally changed the parenting arrangements, the Respondent took no steps to reinstate the alleged shared parenting arrangement.

In any event, the Court determined that it was up to the Applicant's mother to claim interim child support at any time between July 2019 and July 2023, when the Respondent had agreed to start paying child support commencing August 1, 2023. However, the Applicant's mother failed to do so and had no reason to explain why.

The Court also noted that due to the Applicant's mother’s high income ($356,295 in 2023), the Child suffered no deprivation from the Respondent's father’s failure to pay child support when it was due. However, the Respondent's father still has child support obligations.

The Court, however, could not determine whether retroactive child support should begin prior to July 2019. This is because, between the date of separation (2015) and the Applicant’s effective notice (July 31, 2019), there is a dispute over whether there was shared parenting. If there was a shared parenting arrangement during this period, then the Respondent's father may not owe retroactive child support during this period. Since there is no evidence for the same, the Court determined that the issue of retroactive child support before July 2019 should be left to trial.

With respect to the Respondent’s income for support purposes between 2019 and present, the Court declined to impute his income for the years 2019-2022. This is because the Court found that there was insufficient evidence to make a finding for the same. Further, the Court determined that in light of the Respondent’s financial difficulties, imputing his income from 2019-2022 without sufficient evidence may cause him hardship.

However, the Court found that if the father’s income in August 2023 was $60,000, his income should be imputed effective January 1, 2023, for temporary child support purposes.

Thus, even though the Court acknowledged that the Respondent's father should have been paying child support at least since July 2019, the Court only ruled for interim child support payments commencing January 1, 2023, leaving the rest to trial.

2. Should paragraph 3 of the Nieckarz Order be terminated or varied to allow the Mother to sell the home?

The Law

A court’s jurisdiction to grant a preservation order is found in sections 12 and 40 of the Family Law Act. However, neither section has an express provision that allows for the variation of a preservation order. Thus, the Court turned to jurisprudence.

The Court found that a party cannot re-argue the propriety of the original preservation order once they have agreed to it. A party who consents to an order should, absent special circumstances, be estopped from denying its propriety.

The Court also looked at the test for the variation of an interim injunction (analogous to the variation of a preservation order), where the relevant factors are:

1. Whether there has been an inordinate delay in advancing the claim;
2. Any harm to the party opposing the variance being sought;
3. Whether the facts presented are substantially different from those upon which the original order was granted; and
4. Whether the facts are so dramatically different that the underpinnings of the original order are no longer valid.

Applying the Law

In this case, the Nieckarz Order was made at a Case Conference where both parties reached a compromise and consented to the terms.

The Court also found that there was a lengthy delay in the proceedings, but that this could partly be explained by the COVID-19 pandemic and the personal circumstances of the Respondent's father. The Applicant's mother also delayed bringing her own support claim, almost 4 years post-separation.

The Court had no evidence pertaining to the potential harm the Respondent may suffer should the variation be granted. There is likewise little to no evidence for factors (3) and (4).

Thus, in considering all the factors, the Court thought it fair to hold the Applicant's mother to the Nieckarz Order until trial. However, the Court determined that this did not mean that the Applicant should not be allowed to move to another home.

Thus, the Court ordered that the Nieckarz Order be varied to allow the preservation order to be registered against another real property in Ontario solely owned by the Applicant's mother.

CONCLUSION

Temporary child support should commence on January 1, 2023, by using the Respondent’s imputed income of $60,000. The Nieckarz Order will be varied to allow the preservation order to be registered against another real property in Ontario owned by the Applicant.