Recent case law: Setting off child support arrears

In the case of Starr v Starr, 2008 CarswellOnt 11318 (Ont. S.C.J.), Justice Timms allows the father to set off his child support arrears against money owed to him by the mother. This is an unusual decision, because courts generally do not want to interfere in the payment of support that is intended to benefit the children even when the parent receiving the child support owes money to the parent paying the child support.

However, in this case, Justice Timms found that a set off was appropriate, largely because of what he felt was very bad behaviour on the part of the mother. The father had been successful in an action against the mother for malicious prosecution by (according to the court decision) falsely alleging sexual abuse by him of the children and alienating the children from him, taking them from British Columbia to Ontario and hiding rather than permitting access.

We all know from our work that mothers are often not believed when they make true allegations of sexual abuse, so we may have some concerns about the basis for Justice Timm’s decision in this case. Nonetheless, he does make some interesting comments about the concept that child support can be clearly separated from other money in a family’s budget:

. . . the apparent logic behind the compartmentalisation of child support from other money in any given household is open to question. It is hard to image a household where the family monies are partitioned into children’s monies and all other monies. Normal people do not operate their lives that way. They make do with what they have. If they have less, everyone tightens their belts; it they have more, everyone benefits.

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