Focus On

MAINTENANCE AND SUPPORT - Child support - Considerations - Dependent children - Child’s age - Orders - Enforcement of orders - Arrears of maintenance - Reduction or rescission of arrears

Thursday, December 22, 2016 @ 7:00 PM  


Appeal by the father from a judgment fixing the date of termination of child support and calculating arrears. The parties’ child was born in 1984. The mother and child were residents of British Columbia and the father resided in Saskatchewan. In 2006, a consent order was granted in British Columbia requiring the father to pay monthly child support of $608 based on an income of $65,294. The father unilaterally terminated support when the son was 17 years of age after learning he was residing with a family friend rather than the mother. The living arrangement was, in part, so the child could participate in alternative learning for students with ADHD. The child received a room and board subsidy of $610 per month and returned to the mother’s home on weekends and holidays. The mother disclosed the subsidy to maintenance enforcement authorities. The program proved to be a considerable success. In May 2014, the child graduated high school with distinction at age 19. In 2015, the father applied to cancel arrears based on the change in the child’s living arrangements. The chambers judge terminated the father’s support obligation as of the date of the child’s high school graduation and calculated arrears effective thereto. The father was ordered to pay arrears fixed at $20,553 at a rate of $856 per month. The father appealed.

HELD: Appeal dismissed. There was no jurisdictional issue with the authority of the Saskatchewan judge to deal with the issues raised by the father. When the child’s living arrangements changed, he remained in full-time attendance in a course of study structured to his particular challenges and needs. He completed his education with distinction despite those challenges. The finding that the father’s support obligation continued past age 19 until the child’s graduation was not a case of impermissibly imposing an unanticipated retroactive support obligation. This was a judicial determination regarding the duration of an extant order that was capable of extending beyond age 19 in appropriate circumstances. This was not an instance in which the child had withdrawn from the mother’s charge, such that no financial assistance or parental guidance was necessary. The child remained financially dependent on the mother, notwithstanding the subsidy, as the new arrangement came with considerably higher costs and the mother continued to bear all child-related expenses. The appeal was dismissed. All funds paid into court as a result of the stay pending appeal were to be applied against the father’s arrears.