In a recent decision of the Alberta Court of Appeal (ABCA), a mother successfully appealed a set of orders made by a case management judge in her former spouse’s favour. In determining ongoing support owed to the mother by her former partner, the judge found multiple reasons to reduce or cancel the support payable by the father. The mother was largely successful in her appeal.
The mother and father had been together for 18 years and had four children together; two sons and two daughters. During the relationship, the mother had stayed at home to care for the family. When the couple separated, the children remained with their mother in Alberta. After a year, the sons went to live with their father in Saskatchewan. The daughters joined their brothers three years later, largely due to the mother’s medical issues, which included substance and alcohol abuse.
The parents sought a determination of custody relating to the two daughters and were awarded joint custody. The girls would remain living with their father, but the mother would have the benefit of generous access to them. The case would be subject to ongoing management to address any outstanding financial matters or address any custody or access issues that arose, due to the level of conflict present between the parties.
The father had arrears in child support totalling nearly $10,000 and spousal support arrears totalling nearly $78,000. The judge struck the child support arrears and reduced the spousal support arrears by deducting the following:
The judge further suspended the father’s ongoing spousal support obligations to the mother indefinitely.
The judge had awarded enhanced costs to the father because he had made a “reasonable effort to settle” the matter on the opening day of the trial, which the mother’s counsel did not appear to consider.
Under normal circumstances, the mother’s costs of the trial would have amounted to $14,500. The ABCA found that the case management judge’s decision to more than double her costs was unreasonable given the circumstances. In this case, the father had only made the offer to settle verbally, on the day of the trial. Further, any consideration of the offer by the mother and her counsel would have been privileged. Lastly, the counsel for the children had noted that the trial was necessary largely due to the father’s failure to act in good faith in coming to a resolution. The cost award was reduced so that they reflected the amount that should have been awarded initially. The reduction in the spousal support arrears was also adjusted accordingly.
Arrears in child support are only struck in exceptionally rare circumstances, as acknowledged by the case management judge in the case at hand. The case management judge found that such circumstances existed here because the youngest child was just eleven years old, and the mother was unlikely to be in a position to pay child support for the remainder of the time that the child remained a minor and resided with the father. Given that, the judge struck the arrears owed by the father to the mother.
The ABCA found that the immediate effect of cancelling the arrears would be that they would not be available to offset the mother’s child support obligations, should those be triggered in the future. If the mother were to become employed or receive assistance (which was a distinct possibility), she may be expected to pay support, in which case the father’s arrears should serve to offset that future amount. Further, the fact that the children were to reside with the father going forward without support from the mother was a function of the Federal Child Support Guidelines based on income disparity and did not amount to special circumstances. The judge’s decision to cancel the arrears was made in error and the arrears were reinstated.
The case management judge also issued an order suspending the father’s spousal support obligations toward the mother. While the judge cited the fact that the children all resided with the father, and that the mother was not obligated to make child support payments in light of the income discrepancy as reasons for the suspension, these reasons were not sufficient. These same factors had initially been considered when the spousal support awards were calculated using the Spousal Support Guidelines. The judge gave no basis for the suspension of the payments beyond the factors that had formed the basis for the initial calculations. The payments were reinstated pending the couple’s next appearance before the case management judge, and a possible reassessment of income at that time.
The family law lawyers at Mincher Koeman are exceptionally experienced with respect to child custody and access and orders for support following the breakdown of a relationship. We will work with you to ensure a custody and access arrangement that fits your family’s specific circumstances, and ensure that support obligations are set fairly and upheld as needed. Contact our office today by calling us at 403-910-3000 or contact us online.
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