Introduction

The primary issue in Hajak v. Hemmings was child support. Through a mediation agreement, the parties agreed that the father would pay child support at a number lower than what was appropriate per the Child Support Guidelines. The father paid the agreed on support for some time, before stopping payments altogether. The mother then brought an application seeking retroactive and ongoing child support for the parties’ two children.

Background

In this case, the Applicant mother and Respondent father never married. They cohabitated for roughly four years, having two children during that time.

At the time of these proceedings, the children were 10 and 14. They resided primarily with the mother but had parenting time with their father three weekends per month.

After separating in 2014, the parties signed a mediation agreement that addressed the issue of child support. The father agreed to pay child support in the amount of $450 per month. This amount was not based on the Child Support Guidelines. The parties did not explain why they agreed to the lower amount, and the court believes this started the father’s long journey of believing that child support was negotiable. In reality, the Child Support Guidelines are very rigid.

The parties later agreed to raise the child support payments to $650 per month, which was appropriate per the Child Support Guidelines. The father continued paying this amount despite increases in his income until 2020 when he unilaterally made the decision to cease making payments at all.

Analysis

The court in Hajak v. Hemmings was clear from the outset that there is no excuse for the father not to pay child support. Child support is the right of the child. It is not flexible despite what the father had believed.

Thus, there was no issue of entitlement. The only issue at hand became the quantum of child support. The court had to determine what amount the father should have been paying from 2016 to 2020 when he was making payments that were below the Child Support Guidelines, what amount he should have been paying after he stopped making payments altogether, and what amount he should be paying moving forward.

The court referenced previous case law in its analysis. This case law listed various factors which made clear that child support is the right of the child and is needed to provide children with the same standard of living they enjoyed while their parents were still together. These principles apply equally to retroactive support claims which are considered a valid debt.

The court was clear in the importance of child support as a right for the child. However, an issue that arose was the mother’s delay in making such a claim. The Respondent had been paying support below the mandated amount in 2016 and stopped paying altogether in 2020. The mother did not bring her application until 2024, four years later.

The court examined previous case law which noted that although seeking child support as soon as possible is practical, it is unfair to bar parents from applying for support because they had not claimed it earlier. Furthermore, a parent who knowingly avoids or diminishes their support obligation, as the father in this case has, should not be allowed to profit from this irresponsible conduct.

Using these principles, the court concluded that the retroactive adjustment of child support should reflect the actual income of the father. This adjustment should have gone back to 2016 when the mediation agreement was first signed. However, the mother was generous and agreed to the adjustment going back to just 2018. The court therefore ordered that the retroactive support would commence on January 1, 2018, and apply onwards to 2024 when the application was heard.

For ongoing support, the court ordered child support in accordance with the Child Support Guidelines amount for two children. The court emphasized that the Child Support Guidelines are rigid and should be followed.

Conclusion

In Hajak v. Hemmings, the court was clear regarding the importance of child support. Child support is the right of the child and is not a right that can be changed or made flexible, despite what the father in this case believed. Further, the court stated that unmet child support is a debt just like any other and must be satisfied. For this reason, the court ordered that the father pay retroactive and ongoing child support pursuant to the Child Support Guidelines.