11 June 2011

Court of Appeal Releases Decision on the Cancellation of Arrears of Child Support and Special Expenses

The Court of Appeal has just released its decision in Semancik v. Saunders, a helpful case which reviews and summarizes the law on many common issues relating to applications to cancel arrears of child support and the payment of children's special expenses. Here are the highlights of the court's review of the law:
  • Under s. 96 of the Family Relations Act, the court may only reduce arrears of child support if it would be "grossly unfair" not to do so.
  • A 1999 decision of the Supreme Court called Earle v. Earle held that this requires an applicant to prove (1) a significant and long lasting change in circumstances, and (2) that it would be grossly unfair not to cancel the arrears. Arrears will usually only be cancelled if the applicant proves that he or she is unable to pay “now and in the future.”
  • The principles given by the Supreme Court of Canada in D.B.S. v. S.R.G. on orders involving retroactive child support under the Divorce Act also apply to retroactive child support orders under the provincial Family Relations Act.
  • The D.B.S. principles also apply to orders involving retroactive payment for children's special expenses.
  • There is, however, an important distinction between orders for child support and orders for special expenses. "In the case of child support, the payor parent’s income is determinative. That parent knows what his or her income is and can determine the amount of the child support obligation from the [Child Support] Guidelines. In the case of [special] expenses, it is the recipient parent who knows the details of the expenses. If that parent does not communicate that information to the payor parent, the payor parent cannot fulfill his or her legal obligation to contribute."
  • Adult children should be required to make a reasonable contribution to the costs of their post-secondary education when those costs are claimed as a special expense. A "reasonable contribution" does not mean that an adult child should be expected to cover the cost entirely or to contribute all of his or her income to these costs.