Should back child support be ordered for the period when the child was exclusively in one parent’s de facto care because of that parent’s contempt of court? Following the decision in Johnson v. Mayer,  2014 MBQB 197, aff’d 2016 MBCA 41, there is support the proposition that it may be appropriate to refuse back child support in the face of a breached custody order.

Father applies for back child support; mother brings motion for contempt 

The parties married in 1996 and their daughter, J., was born in 1997. Following their separation in 2008, the father set out to destroy the relationship between J. and her mother. He made and broke various agreements regarding the schedule for J.’s care, manipulated J. emotionally to induce her to reject her mother, and made false reports to a child protection agency and the police.

On November 6, 2009 the court pronounced a consent interim order granting joint custody and providing for alternate weeks of care and control. The interim order of November 2009 did not contain a provision for child support, given the shared care arrangement and the fact that the parties’ incomes were approximately equal.

The November 2009 order was repeatedly breached by the father. When J. turned 13 in September 2010, her father implemented his plan to have her exclusively in his care and control. He brought a notice of motion seeking primary care and control and child support commencing October 1, 2010. Between 2010 and 2013, J. had only had one visit with her mother. The mother commenced a motion for contempt. The father delayed the trial by coming to various agreements which were never followed.

Issues to be addressed at trial  

The issues to be dealt with at trial were custody, care and control of J., the mother’s motion to have the father found in contempt of the November 6, 2009 interim order, and child support. It was apparent from J.’s testimony at trial in 2013 that she was by then completely alienated from her mother and unwilling to see her. After hearing J.’s evidence at trial, the mother put J.’s interests first by relinquishing any further claim to custody and decision-making and agreeing to pay child on a going-forward basis. That left the issues of the father’s contempt and back child support for the interim period.

Finding of contempt

There was clear and unequivocal evidence that the father had been in repeated contempt of the 2009 order. He emotionally manipulated J., bribed J. and lied to J. for years with the goal of having J. completely reject her mother. He also manipulated the court system by coming to an agreement at a case conference on July 16, 2010 so that August 2010 trial dates would be cancelled, and then resiled from that agreement in September 2010.

At trial, the father continued to deny any responsibility for his actions. The trial judge found that to be an aggravating factor and was of the view that the circumstances of this case warranted incarceration of the father. His actions harmed J. emotionally and caused serious emotional and financial damage to the mother. However, the trial judge opted not to make an order of incarceration because such an order would have a serious negative impact on J., who had been put in the middle of this tug of war for far too long. In recognition of the societal impact of the father’s contempt, the trial judge imposed a fine of $2,000.

Application for back child support refused 

The father argued that at some point between October 1, 2010 and the trial in 2013, it became in the child’s best interests to be in his exclusive care, and thus at some point in that interim period, child support became payable. The father argued that child support is the right of the child, and his conduct should not affect that.

Despite the fact that the child was in his de facto care during the period in question, the trial judge refused the father’s request for back child support. The child was in his de facto care because of his contempt of an existing order that granted joint custody. The trial judge rejected the argument that at some point it became in J.’s best interests to be solely in the care of her father, and was careful to note that although she granted the consent order of sole custody to the father, she was not finding that it was in the best interests of J. that she not see her mother. Rather, sole custody was granted to the father because it was in J.’s best interests that the litigation cease.

The trial judge was not persuaded that J.’s interests required the granting of a back child support order for the period prior to trial. During the time period in question, the daughter was the father’s only dependant and, not only did the father not incur financial hardship, he spent excessively on his daughter’s clothes, as well as building an expensive (over $20,000) log cabin in the backyard for her. The trial judge did, however, order a retroactive amount to be paid by the mother toward certain section 7 expenses under the Child Support Guidelines Regulation.

Appeal from order refusing back child support

The father appealed from a final order refusing to award back child support. The Court of Appeal of Manitoba dismissed the appeal, filtering the trial judge’s reasons through the four basic considerations for back child support orders as established by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, namely:

1.     Whether the recipient parent has supplied a reasonable excuse for the delay;

2.     The conduct of the payor parent;

3.     The circumstances of the children; and

4.     The hardship the retroactive award might entail.

The Court of Appeal agreed with the trial judge that this was not an appropriate case for the award of back child support. In keeping with the Supreme Court of Canada’s direction in D.B.S. v. S.R.G., the trial judge took a holistic view of the matter, and decided the case on the basis of its particular factual matrix. The circumstances of the daughter were such that she would get no discernible benefit from a back child support award. There was no evidence that the father was not able to provide his daughter with adequate support commensurate with her standard of living. In effect, a back child support award would constitute a financial windfall for the father. Also significant was that the father had no reasonable excuse for the delay in not pursuing his claim in the three years between October 2010 and the commencement of the trial in 2013 – in fact, there was a finding that he deliberately delayed court hearings and manipulated the system.

Take home point on back child support in the face of a contempt order

Back child support may be appropriately refused where a child has been in de facto custody of one parent alone because that parent is in contempt of an existing order. That being said, an award of back child support always involves a consideration of the unique circumstances of the particular case, and there may be situations where back child support is appropriate in the face of a breached custody order.