Often in a matrimonial dispute, the court orders that the non-custodial parent is to produce their annual income tax returns to adjust for child support thereafter. This is because the non-custodial parent has the obligation to pay child support.
After this order is made, let us say that 10 years have gone by. The non-custodial parent intermittently produces his/her income tax returns. The custodial parent does not ask for it on an annual basis.
Then, the custodial parent asks for arrears based on the nonpayment of child support for the last 10 or 15 years that the non-custodial parent has not been paying the proper child support amount because of non-production of their income tax returns.
What happens then?
This was the situation in a recent 2024 case Wilcox v. Worthington, 2024 ONSC 3794 (CanLII), <https://canlii.ca/t/k5l97> where the parties separated in 2006. According to the final order issued in 2006, the Judge ordered that
"The Respondent shall advise the Applicant immediately in writing if he gets a raise in pay and shall pay child support as per the guidelines effective the date of the raise in pay."
The court quoted two recent Supreme Court decisions:
Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, the Supreme Court discussed the concept of blameworthy behaviour on the part of the
payor parent. At para. 31, Brown J. states:
"When a payor parent fails to pay the appropriate amount of child support, the recipient parent is left to shoulder the burden. If the recipient parent
does not have the means to provide their child reasonable support, the child suffers. Both the recipient parent and the child may experience
hardship because of a payor parent’s neglect. Seen in this light, it bears repeating that retroactive child support is not exceptional relief (D.B.S., at
para. 5): there is nothing exceptional about judicial relief from the miserable consequences that can flow from payor parents’ indifference to their child support obligations. This is not to say that hardship is required to ground an award for retroactive child support, as there is also nothing
exceptional about relief that creates a systemic incentive for payor parents to meet their obligations in the first place. Just as an order of child support
is intended to provide children with the same standard of living they enjoyed when their parents were together (D.B.S., at para. 38), an order of retroactive child support provides an (albeit imperfect) remedy where
that does not occur. And as this Court recognized in D.B.S., “courts are not to be discouraged from defending the rights of children when they have the opportunity to do so” (para. 60).
The judge at paragraph 74 also quoted the Supreme Court which confirmed in Colucci (2021) that regardless of whether the recipient had given notice, the payor knew when their own income had increased and must be taken to know that more income means more support (para. 86), and that the recipient’s delay in enforcing arrears is irrelevant to the analysis (para. 100).
Based on these directions and guidance of the Supreme Court the judge ruled that the father was indeed responsible for retroactive child support all the way from 2006 until the children had become adults in 2022. The Judge then ordered the father to pay outstanding retractive lumpsum child support.
The lesson from this case is that payors beware. You have a responsibility towards your children. You are required morally, ethically and legally to voluntarily share your income tax returns and especially if there are changes or increases to your income so that proper child support can be paid on a continuous basis. If not, there is no doubt that the Court will order you to pay a retroactive amount of support based on clear directions from the Supreme Court. In addition in the above case, the Judge also ordered payment of interest at 5% on the amount owed.
The above case is an example where the lawyer has to carefully research in obtaining information about the past factually, do careful case law research and apply the research to the facts at hand when putting it across to the Judge at trial. We do this meticulously at Shankar Law. We are happy to serve you anywhere in Ontario and especially at our locations in the Grey, Bruce and Huron regions. We are here to help with your Family Law, Criminal Law, Real Estate Law or Estate matters.
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