Ontario Family Law: Forgiveness (a.k.a. “Rescission”) of Child Support Arrears
Child support is a crucial aspect of Family Law in Ontario. If you are one of the parents of a child, it’s a mutual obligation that each of you has, regardless of your marital status. And it’s a stringent obligation, since the law makes it clear that your child is entitled to benefit from the financial support that each of you owe.
If you are separated or divorced, you may be subject to a court order, requiring you to pay child support to the other parent. Legally, any failure to pay that support is considered an enforceable debt.
But what if you have fallen behind on your payments for a significant time, due to legitimate financial hardship? What if arrears are accruing, and there’s no end in sight? Do you have any recourse?
Rescinding Arrears
The answer starts with an incontrovertible fact: Child support obligations are prioritized as serious legal obligations. Support is a right that belongs to your child. So even where those accumulated arrears are due entirely to circumstances beyond your control, there is a legal presumption against your being able to rescind any part of them. Simply put: Canadian law does not condone any incentives that would allow you to be deficient in meeting your child support obligations.
But with that said, there are some very narrow circumstances under which Canadian Family Law gives the courts discretion to allow forgiveness of some, or even all, of your arrears. Here are some key points to know.
Legislative Framework
Child support is governed by one of two main pieces of legislation: For married parents, it’s the Divorce Act and the Child Support Guidelines under it; for unmarried parents in Ontario, it’s the Family Law Act.
Both sets of legislation have built-in provisions giving courts some very narrow discretion to forgive child support arrears. The basic presumption in these cases is that the amount you are ordered to pay in child support is correct, but that your ongoing financial hardship impacts your ability to pay the unpaid amount that has accumulated.
(Note this is different from what is known as a “variation” application. That describes the scenario where you have an order or agreement setting a child support amount, but due to a past reduction in your income, it would be fair to ask the court to decrease – retroactively – the amount you should have been paying all along. This second scenario aims to correct the miscalculation as to the proper amount that you should have been paying. The test for this type of application has slightly different considerations).
For rescinding arrears, the proper regime depends on your marital status, but the principles and tests are similar. If you and the other parent are unmarried, then it’s section 37(2.1) of the Family Law Act that governs. It provides courts with the discretion to forgive arrears in special circumstances — namely where the court is satisfied of one of these:
- That reasonable arrangements have been made for the support of your child, or
- That special provisions in an order, judgment, or written agreement respecting the arrears have been made, or
- That the arrears should be rescinded to prevent undue hardship.
On the other hand, if you and your child’s other parent are married, then you can look to section 17 of the Divorce Act, which allows a court to rescind arrears in some circumstances. The Supreme Court of Canada took a very close look at this provision in a landmark case called Colucci v. Colucci, 2021 SCC 24, [2021] 2 SCR 3, to identify the nuanced principles and governing considerations. It began with the observation that any opportunity to rescind arrears is “narrow” and that Canadian courts take a “highly restrictive approach” to the availability of this potential remedy. Indeed, rescission of arrears is considered a “last resort in exceptional cases, such as where the payor suffers a ‘catastrophic injury'”.
The Supreme Court then went on to set out various guiding principles for these kinds of rescission applications. They were summarized recently in called K. v. M., 2023 ONCJ 1, where the Ontario court wrote:
In this category of cases, the prior child support order or agreement corresponds with the payor’s income. The arrears accurately reflect the amount of support that the payor should have paid under the Guidelines, after all considerations, including any claim of hardship under s. 10, have been determined. In other words, the arrears represent sums that could have been paid at the time payments came due, but were not. The payor parent’s claim for rescission is thus a form of “hardship” application, in which there has been no past change in circumstances justifying a retroactive decrease in the support obligation.
Under this category of cases, the payor’s ongoing financial capacity is the only relevant factor. The payor must therefore provide sufficient reliable evidence to enable the court to assess their current and prospective financial circumstances, including their employment prospects and any assets, pensions, inheritances or other potential sources of future capacity to pay.
In this category of cases, the payor must overcome a presumption against rescinding any part of the arrears. The presumption will only be rebutted where the payor parent establishes on a balance of probabilities that — even with a flexible payment plan — they cannot and will not ever be able to pay the arrears. Present inability to pay does not, in itself, foreclose the prospect of future ability to pay, although it may justify a temporary suspension of arrears. This presumption ensures rescission is a last resort available only where suspension or other creative payment options are inadequate to address the prejudice to the payor.
It also encourages payors to keep up with their support obligations rather than allowing arrears to accumulate in the hopes that the courts will grant relief if the amount becomes sufficiently large. Arrears are a “valid debt that must be paid, similar to any other financial obligation”, regardless of whether the quantum is significant.
While the presumption in favour of enforcing arrears may be rebutted in “unusual circumstances”, the standard should remain a stringent one. Rescission of arrears based solely on current financial incapacity should not be ordered lightly. It is a last resort in exceptional cases, such as where the payor suffers a “catastrophic injury.”
The Supreme Court also added that, above all, the end result of an application to rescind arrears must be fair. Any debt forgiveness in the payor’s favour must still protect the child’s interest in receiving the appropriate amount of support to which they are entitled. Also, orders of this nature must safeguard the interests of everyone involved, in terms of certainty and predictability, while still recognizing the need for fairness and flexibility due to the payor’s fluctuations in income.
Related: A Breakdown of Child Support Calculations and Modifications
What Level of Proof is Required?
As these passages emphasize, getting child support arrears rescinded will tend to be an uphill battle. Granted, the courts must remain realistic, but they remain firmly predisposed against making such orders, preferring to foster even a “faint hope” of eventual payment. As the court in P.M B. v. M.L.B., 2010 NBCA 5, 353 N.B.R. (2d) 323 put it:
… If payers of support truly lack the present and future financial resources to address the arrears problem, the court cannot be expected to craft an enforcement order that ignores the adage: “one cannot draw blood from a stone”. In this limited sense, the pleas of inability to pay and hardship cannot be ignored. But the pleas must fall deafly on judicial ears when the relief sought is a forgiveness of arrears. As a matter of law, support recipients are entitled to cling to the faint hope of a future ability to pay.
But with that in mind, let’s assume you still want to ask a court to consider rescinding your child support arrears. Naturally, there are certain evidentiary thresholds that you must meet.
If you are married to the child’s other parent, you will look to the Divorce Act framework, which requires you to establish that:
- You are currently unable to pay your child support arrears, and
- You will be unable to pay those arrears in the future, due to a present-day and ongoing financial hardship.
In other words, you have to show that you cannot pay – and will never be able to pay – the child support arrears, even with flexible payment plans. You need to supply “sufficient reliable evidence” of your current and prospective financial circumstances. It’s a test must be met on the balance of probabilities.
Importantly, you must also squarely overcome the legal presumption against rescinding your arrears, to the court’s satisfaction. That presumption will be rebutted only in unusual circumstances, since rescinding arrears wipes out a legally-recognized debt, which is an outcome preserved for exceptional cases only.
Related: Child Support Calculator for Ontario | Child Support Canada
Notice
The other thing required in any request to rescind your arrears, is “effective notice” to the other parent that such a request is being made.
This was emphasized by the Ontario Court of Appeal in a case called Gray v. Rizzi, 2016 ONCA 152. The Court began by noting that any recipient parent (and by extension, the child), is entitled to expect that any existing support orders will be complied with. He or she is also entitled to arrange their financial affairs respecting the child accordingly.
This means that before any change can be made, the other parent of your child is entitled to receive effective notice that there has been a relevant change to your financial circumstances. You must provide reasonable proof to support your claim, together with ongoing financial disclosure, so that he or she can “independently assess the situation in a meaningful way and respond appropriately.” Failing to do so will impact the court’s decision on whether to grant you a remedy.
The Factors a Court Will Consider
This leads us to the next question: What are the factors a court will consider, when deciding whether to allow your arrears to be rescinded? These were also covered in Gray v. Rizzi, 2016 ONCA 152; the Court said that while “there is no fixed formula a court must follow”, the following should be considered:
(1) The nature of the obligation to support, whether contractual, statutory or judicial;
(2) The ongoing needs of the support recipient and the child;
(3) Whether there is a reasonable excuse for the payor’s delay in applying for relief;
(4) The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;
(5) The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has co-operated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.: “Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears”;
(6) Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;
(7) Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears.
If the court hearing your application sees fit to grant the rescission order, it will also consider the date that the other parent received effective notice from you. The court may craft an order that takes that date, and the pertinent circumstances flowing from it, into account.
What are the Court’s Other Options?
As emphasized by the Supreme Court in Colucci v. Colucci, the law strictly avoids letting debtors undermine the child support enforcement regimes or circumvent their obligations. Instead, the law favours accountability, with a dose of flexibility when needed.
This means that if your financial circumstances are genuinely causing you difficulties in paying your child support arrears for the foreseeable future, then there may be other options. Instead of rescinding your arrears wholly or in part, the court may consider giving you options to mitigate the hardship of your circumstances. Depending on your circumstances, these might include:
- A temporary suspension of your child support obligations
- Allowing you to make periodic payments
- Other creative payment options of the court’s design.
Rather than allow debt forgiveness, this keeps your support obligation “on the books” with adjustments for your challenging circumstances. For example even in the face of significant arrears, the court may allow you to temporarily pay $50 or $100 a month, as an incremental measure towards satisfying the entire amount when you get back on your feet.
This was the scenario in a case called Deneau v. Scott, 2016 ONCJ 300. The father had racked up arrears and claimed – without financial proof – that he was unable to pay them down, due to his unemployment during a downturn in the economy. He also claimed he was unemployable due to the emotional distress of not being able to see his children. The court rejected the father’s explanations, concluded instead that he was deliberately underemployed. His frustration at not being able to see his children was no excuse for ignoring the arrears that were accumulating, the court said. It ordered a slight reduction of his overall arrears to $9,500, but ordered him to pay $50 per month towards that amount going-forward.
Case Examples
Having set out the basic framework for potential rescission of arrears, let’s look some illustrations of how a few Ontario courts addressed these kinds of requests in the past.
We’ll start with the Colucci v. Colucci case itself. In that case the payor father had not made any voluntary payments toward his child support obligations for more than 16 years, and owed approximately $170,000 in arrears. He asked the court to forgive the entirety of his debt, but provided little documentation or financial disclosure to support his claims.
The lower court judge did allow the father’s support amount to be decreased retroactively, to correct some misapprehensions around how much the father had been earning over the years – and by extension, how much child support he owed. This brought his arrears down to about $41,600. However the father did not succeed in persuading the Appeal Court or the Supreme Court of Canada that this amount should be forgiven entirely. Among the reasons the Supreme Court cited, was that the father made few – if any – voluntary support payments, and showed no willingness to support his children despite having a legal obligation to do so. This was tantamount to bad faith efforts to evade the enforcement of a court order, and it was the children who suffered hardship as a result. The father’s misconduct, together with his failure to provide evidence of his financial circumstances, should not be rewarded by rescinding the support arrears, the Court said.
In Kerr v. Moussa, 2023 ONCJ 1 the father asked the court to rescind all but $3,240 of more than $20,000 in arrears, because he said he will never be able to pay them. The mother opposed this request. The father went so far as to say that the bulk of the arrears should be extinguished because he had been sent to jail for failure to pay support (pursuant to a default hearing), and he had served his full sentence.
The court rejected this outright. It noted the default hearing was an enforcement proceeding under provincial legislation designed to enforce the payment of those arrears – not forgiveness of the debt. In other words, the fact that he was sent to jail did not extinguish the arrears – to the contrary, it was meant to encourage and enforce his eventual payment of them. As the court put it: “The legal mechanism for the father to reduce the arrears is to bring a motion to change, as he has done here – not to sit out a jail term for failing to pay child support.” Then, citing the tests and principles set out by the Supreme Court of Canada in Colucci v. Colucci, the court concluded that the father had failed to meet the stringent test required for a rescission order in his favour. To the contrary, he had engaged in bad behaviour which landed him in jail. Moreover the court had not lost all hope that he might be able to pay in the future, adding:
The court will not rescind any of the arrears. The father has engaged in significant blameworthy conduct. He currently can pay something towards the arrears. He also can retrain to improve his financial circumstances and pay more towards the arrears in the future. There is always the possibility that the father will receive an inheritance or prize money from a lottery. …
The Takeaway
When it comes to orders or agreements to pay child support, the Family Courts have very broad powers. This includes the ability to reduce the amount of support arrears you must pay, or even rescind them in whole or in part.
However, these kinds of remedies are considered to be “exceptional”. They can be used only as a “last resort”, in circumstances where you can demonstrate that you are not only currently unable to pay, but also that you will never be able to pay in the future.
If this describes your situation, you may have legal options. Feel free to give our offices a call, to explore the potential recourse you may have.