08202017Headline:

Father Loses Home and Rental Income – His Child Support Obligation Stays the Same

Father Loses Home and Rental Income – His Child Support Obligation Stays the Same

In a recent decision in Roscoe v. Roscoe, the issue was whether a father who had lost his home under seizure and sale – and whose income from a rental unit had likewise been eliminated – was entitled to have his child support obligations reduced.

The answer from both the lower court and the Court of Appeal was: “No.”

In this case the father had been ordered in 2003 to periodically pay support for the child he had with the mother from whom he was now divorced. Since that time, however, the father had been delinquent in making those child support payments; indeed had never voluntarily paid child support since the original order was made and instead had to be coerced to fulfil his obligations. In fact, he stopped making support payments entirely in March of 2011. The child was now 14 years old.

It was also noteworthy that the court-ordered support amount was based on the court imputing the father with a rental income of $ 16,800 per year from his home; the court had been forced to guess at the father’s income because he had not been forthcoming with the requisite financial disclosure.

Then, in 2010 the father fell into default on his mortgage payments, and his home was seized and sold by the bank. This naturally eliminated the father’s source of rental income, whether at the level imputed by the court or otherwise.

In light of his situation, the father – who was self-represented and who had previously been declared a vexatious (i.e. pesky) litigant – brought a motion to court to have the original 2003 support order varied, and to have the amount he owed to the mother reduced retroactively. At that variation hearing the father was unsuccessful: the lower court judge refused to retroactively reduce the amount he owed to the mother, and replaced the prior periodic payment schedule with an order requiring him to pay her $ 32,000 as a lump sum. It also prohibited the father from bring further motions (some of which included various constitutional challenges that the father was contemplating).

The father then sought to have the lower court ruling overturned on appeal; likewise, he was unsuccessful before the Ontario Court of Appeal (where, incidentally, he represented himself as well).

The appeal court began by making particular note of the father’s recalcitrance in his refusal to make child support payments voluntarily, and in his refusal to make proper financial disclosure. It also pointed out that the father had dragged the mother into protracted litigation.

Against this background, the court then evaluated the father’s financial situation. It conceded that the father’s financial circumstances had indeed changed somewhat from the date that the original support order had been issued. However – apart from the seizure of his home – the father had not demonstrated any other change in his circumstances. The fact that the father was apparently not working at the present time did not rebut the trial judge’s conclusion that he was nonetheless capable of working.

In short – and with the father’s history of being unjustifiably litigious and yet unwilling to comply with prior orders – the court refused to cut the father any slack.

Ultimately, the appeal court confirmed that the $ 32,000 lump-sum award was appropriate, and that there was no reason to reduce the retroactive child support that the father owed.

For the full text of the decision, see:

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

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