Kristen Lee Bucci

The moving party sought to rescind child support arrears and terminate ongoing support after spending five years incarcerated with no income.

The court considered the variation provisions of s. 17 of the Divorce Act and the Child Support Guidelines, including the principles governing rescission of arrears and imputing income.

It held that the payor had no present or past capacity to pay during incarceration and that imputing income during that period would be irrational.

The court also found that a possible future residential school settlement did not constitute future capacity to pay arrears that accrued when the payor had no income.

The arrears were rescinded and ongoing support was varied to zero, subject to future variation if circumstances change.

The applicant brought a motion to change a temporary order that had previously eliminated child support due to the respondent’s unemployment and anticipated access transportation costs following the applicant’s relocation with the child.

The court found a material change in circumstances because the respondent had since obtained full-time employment with significantly increased income.

The court considered the allocation of access transportation costs, noting that while non-custodial parents often bear such costs, the law does not require this in every case.

Given that the relocation created substantial travel expenses and the parties had historically shared those costs, the court determined it remained equitable to continue sharing them.

A temporary child support order was made, adjusting table support by accounting for child care expenses and a contribution by the applicant toward access transportation costs.