Court File and Parties
Oshawa Court File No.: FC-93-000540-01 Date: 2019-01-08 Ontario Superior Court of Justice
Between: Julia Long, Applicant – and – Todd Miller, Respondent
Counsel: Self-Represented (for Applicant) Self-Represented (for Respondent)
Heard: November 22, 2018
Ruling
DE SA J.
Introduction
[1] Todd Miller has brought an application to rescind his outstanding arrears.
[2] Mr. Miller had a son with Julia Long, in 1993. Joshua Long-Miller (“Joshua”) was born on March 15, 1993. Mr. Miller separated from Julia Long shortly after Joshua’s birth. Mr. Miller has been in and out of work for years and has accrued substantial arrears in child support. To date, with interest, the total amount owing is $22,892.37.
[3] Mr. Miller is no longer paying any support. Mr. Miller is currently on ODSP and is also not paying any amounts towards the outstanding arrears. He has been diagnosed with mood disorder, anxiety, anger disorder, and insomnia along with generalized pain and arthritis.
[4] On the basis of his current diagnosis, he asks that the outstanding arrears be rescinded.
Analysis
[5] The finding of a present incapacity to pay does not, of itself, foreclose the prospect of ability to pay in the future: Difrancesco v. Couto, 2001 ONCA 8613. In Haisman v. Haisman (1994), 1994 ABCA 249, 7 R.F.L. (4th) 1, 116 D.L.R. (4th) 671 (Alta. C.A.) Hetherington J.A. said the following at paras. 26-27:
A present inability to pay arrears of child support does not by itself justify a variation order. It may justify a suspension of enforcement in relation to the arrears for a limited time, or an order providing for periodic payments on the arrears. However, in the absence of some special circumstance, a variation order should only be considered where the former spouse has established on a balance of probabilities that he or she cannot pay and will not in the future be able to pay the arrears.
[6] In short, in the absence of some special circumstance, a judge should not vary or rescind an order for the payment of child support so as to reduce or eliminate arrears unless he or she is satisfied on a balance of probabilities that the former spouse or judgment debtor cannot then pay, and will not at any time in the future be able to pay, the arrears.
[7] The decision to rescind arrears involves consideration of a variety of factors. In Filipich v. Filipich (1996), 1996 ONCA 1294, 26 R.F.L. (4th) 53, 92 O.A.C. 319, the Court of Appeal noted that some of the factors a court may consider are set out in Gray v. Gray (1983), 1983 ONSC 4531, 32 R.F.L. (2d) 438 (Ont. H.C.J.) at p. 441. They are as follows:
(1) the nature of the obligation to support, whether contractual, statutory or judicial; (2) the ongoing financial capacity of the respondent spouse; (3) the on-going need of the custodial parent and the dependent child; . . . (4) unreasonable and unexplained delay on the part of the custodial parent in seeking to enforce payment of the obligation, tempered, however, in the case of child support with the fact that such support obligation exists for the child's benefit, is charged with a corresponding obligation to be used by the custodial parent for the child's benefit and cannot be bargained away to the prejudice of the child; (5) unreasonable and unexplained delay on the part of the respondent spouse in seeking appropriate relief from his obligation; and (6) where the payment of substantial arrears will cause undue hardship, the exercise of the court's discretion on looking at the total picture, weighing the actual needs of the custodial parent and child and the current and financial capacity of the respondent, to grant a measure of relief, where deemed appropriate.
[8] As the courts have explained, it would be an error to rescind outstanding arrears without assessing the applicant’s future capacity to pay those arrears.
[9] As explained in Difrancesco v. Couto, supra, an applicant’s failure to make any voluntary efforts at compliance is a factor that militates against even partial rescission of arrears. Wilful non-compliance with the terms of a support order should not be condoned or rewarded by the court.
[10] Moreover, the dismissal of an application to rescind arrears is not an absolute bar to future rescission of those same arrears, provided there is a change in circumstances sufficient to warrant a variation.
Application to the Facts of the Case
[11] On the record before me, I am not satisfied that Mr. Miller will not be in a position to pay the arrears at some point in the future. I recognize that there is no current need on the part of Ms. Long. Even Joshua is well on his way to achieving financial independence.
[12] However, I cannot conclude that Mr. Miller will not be able to pay the arrears at some point. In my view, this is a proper amount owed to Ms. Long in lieu of the financial burden and responsibility she has assumed on her own throughout Joshua’s life.
Disposition
[13] I will suspend the payments and interest on the arrears. However, I will not rescind the amounts owing. If Mr. Miller at some point in the future is in a position to satisfy the amounts owing, he will have to do so.
[14] Obviously, if he never obtains assets sufficient to satisfy the debt, and/or never obtains income to warrant payments in the future, then the debt will remain unpaid.
[15] Ms. Long can seek to reinstate the payments if she becomes aware that Mr. Miller is earning income or otherwise obtains the necessary funds to pay out the outstanding balance.
[16] Mr. Miller will continue to disclose his income tax statements on an annual basis to Ms. Long to enable her to monitor any change in his circumstances.