Walsh v. Walsh Feb. 2, 2004

If you want clarity, the Ontario Court of Appeal gives it in Walsh and tells us that just because a child support payor has had a substantial increase in income a court shouldn’t make a variation order effective to a point before the variation proceedings began unless certain criteria are applied. Imputing a duty to disclose will only work in limited cases and absent that you’ll need to prove the child needed the extra support, the payor had the ability to pay it, and a bunch of factors are met.

Check out Child Support Guideline Material in the FLC’s Cases & Comments section for “When will a court make child support orders retroactive? The Ontario Court of Appeal gives the answer in Walsh v. Walsh” and also “Retroactive Child Support - Who's right is it anyway” to get the scoop.

Lesson: If it looks like the payor is living large make a demand for disclosure under s. 25(1) of the Child Support Guidelines. Or just go about making a disclosure anyway. And make sure that there’s some disclosure provision in any new separation agreement your drafting.

Query: In the Marinangeli case the trial judge found there to be an implied term of disclosure sufficient to justify making the order retroactive simply because there had been a big, undisclosed, increase in the payor’s income. Are we left with different judges using different criteria deciding whether or not to “imply” a requirement for disclosure and that things will be okay if the judge says he or she considered the matter and concluded that there was such an obligation in cases where the only really material change was the increased income?

Tedham v. Tedham (2003), BCCA 600.

Parties married in 1983 and had two adult children. There had been an interim order for child support based upon estimate of father’s income which turned out to be low. W claimed retroactive child support. Trial judge said No - H hadn’t acted inappropriately, his income simply fluctuated annually because of bonuses etc. Court of Appeal disagreed and said:

“Although blameworthy conduct may be a factor favouring an award of child support, the absence of blameworthy conduct does not preclude such an order. It cannot be that payors can benefit from either honest ignorance as to their financial circumstances, or the absence of definitive information with respect to their income at the moment in time when an interim order is made.”

Mother had to borrow money during that period and father not prejudiced by retro order. Interim orders are just that and don’t always have the best evidence. That’s why we have trials.

Lesson: More and more cases are shouting out that you’d better let the other side know of any improvement in your income and increase your child support if you don’t want to be hit with retroactive orders.

Query: Will courts begin ordering return of child support if a retroactive look shows payor’s income turns out to be less than stated? Will snow fall in July?

Adams v. Campbell, [2003] O.J. No. 3336, (Ont. C.J.). [Lawyers Weekly, Oct. 17/03]

Parties had an on-again, off-again relationship for several years. They never lived together but had 2 kids. M sought child support. F said only earned $19,000 and relied on credit cards and loans to exist. M disagreed and argued his lifestyle couldn't be maintained by such a low level of income. She alleged he was living off the avails of prostitution. Interim order imputed $61,000 income to F. At trial neither F nor his witnesses were found credible. From the evidence (F drove various vehicles, lived in a fully furnished home in a good neighbourhood, had time and money for flight instructions, and had access to personal credit of $130,000) the court didn't believe he was only earning $19,000. But after all of that court ended up only imputing $38,016 income to F as the amount to sustain his lifestyle. He had to pay $544 instead of $236 for $16,000.

Lesson: M's persistence paid off - but was cost of trial worth it?

Query: We wonder if he put in an offer to avoid the trial.