The separation or divorce of parents can be a stressful time both emotionally and financially. In addition to the costs associated with just the divorce itself, there may be ongoing financial impacts to the parents, including the obligation to pay spousal support or child support. It’s not uncommon for the parent required to make these payments to resist doing so, but as we see in a recent decision from the Court of Queen’s Bench of Alberta, refusing to do so, especially if you are a high earner, is not looked upon kindly by the courts.

Father resists child support payments

The parents were married for a short time. They had one child together, born in 2005. They separated about one month after the child was born and the court said they have been involved in “fierce litigation” since that time. At one point the father had challenged the validity of the Federal Support Guidelines, though this battle was lost in another recent decision.

The court noted that since the child support order was issued in 2010, the father has failed to provide proper financial disclosure and has made only sporadic child support payments, resulting in wage garnishment.

The issue before the court was whether the mother is entitled to receive retroactive child support from 2010 to 2021, and whether the amounts owing should be adjusted for undue hardship.

Retroactive support

Despite not providing financial disclosure, the court determined that in 2013 the father had an income of $191,653. However, he had split his income with his current wife, resulting in less reported income for himself. The father had also claimed a deduction for child support in his reports to the Canada Revenue Agency over two years, despite not making any payments.

During this time the father failed to make any of his pro-rated s 7 support payments, The court stated this issue was a “no brainer,” adding “It appears that he became too involved with other portions of this litigation to honour the Order or, at worst, he was deliberately contemptuous. I will issue an Order confirming his ongoing obligation to honour the former Order and I am prepared to put a time limit on him fulfilling his obligation unless the parties between them come up with a schedule for payment.”

Undue hardship

The father asked the court to let him off his missed child support payments from 2010 to 2014 because of undue hardship. However, the court stated that he had not provided any evidence to establish his claim. This requirement has been established by a number of courts, including the Alberta Court of Appeal and the Supreme Court of Canada.

While the father told the court that there would be ongoing hardship related to child support, he gave “absolutely no figures that would allow (the court) to assess all his obligations.” The father did tell the court that legal fees have left him short on funds, but this argument failed when the court determined he was responsible for much of the litigation.

Full retroactive child support is ordered

The court found that the father had paid very sporadic support, and nothing related to s. 7 expenses. This, coupled with his dishonesty in reporting income and failure to provide financial disclosure had the effect of privileging his own interests over his child’s. As a result of this, he was ordered to pay everything he owed from 2010 to the date of the trial.

If you have questions about spousal or child support rights or obligations, call HMC Lawyers in Calgary at 1-800-480-3534 or contact us online. Our experienced family law lawyers represent clients in a variety of family issues following a separation or divorce.