Recent case: Rescinding child support arrears

Baxter v Beharry 2015 Carswell Ont 182. This decision, written by Justice Sherr of the Ontario Court of Justice, reviews the issue of when child support arrears should and should not be rescinded. The father had evaded his child support obligations and been consistently in arrears since the initial order was made in 2000, which imputed income to him that he likely never earned. In 2006, the father had obtained an order reducing the amount of the arrears that had accumulated to that date.

In his 2015 motion, he sought to rescind arrears owing to the City of Toronto, which was the assignee of the support order because the mother was receiving social assistance.

Justice Sherr found that there was a change in circumstances to permit rescinding the arrears owing to the mother and terminating the ongoing support order, because the child who was the subject of the order was likely no longer a child and the mother did not defend against the father’s motion.

However, he treated the arrears owing to the City of Toronto differently. These arrears had accumulated prior to the previous court order and before the father’s circumstances changed. Justice Sherr referred to a large body of case law to support his position. He noted that in Trang v Trang (2013 ONSC 1980), the court had found that:

When a court imputes income, that’s a determination of fact. It’s not an estimate. . . . The onus is on the support payor to establish that there should be a change in the way their income is to be calculated. . . Imputed income matters. The reason why income had to be imputed matters.

Justice Sherr felt the father did not provide compelling evidence that he was unable to work and pay the arrears and so left the arrears in place and required him to pay them at the rate of $150 per month.

Justice Sherr also granted a default order to the Director of the Family Responsibility Office that the father be committed to jail for three day for each default in the monthly payments.

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