The issue of back child support for teenage children often arises after a teenager alters the status quo by moving from one parent’s residence to the other. Parents may agree to modify child support payments to reflect the altered living arrangements. In Goulding v. Goulding, 2016 NLTD(G) 142 the parents were not able to agree, resulting in the father bringing an application for back child support from the mother for their teenage child.
Troy and Joanne Goulding were married in 1997 had one child, a daughter named Cameron, in 1998. Following the parties’ separation in 2000, Cameron lived primarily with her mother and Mr. Goulding paid child support. On November 12, 2013 Cameron moved to live with her father. Three days after the move, Mr. Goulding filed an originating application for variation asking that his obligation to pay basic child support cease effective November 12, 2013. He further sought an order that Ms. Goulding pay child support to him. This application was served on Ms. Goulding on December 15, 2013. Ms. Goulding contested the application for child support claiming undue hardship.
In September 2014, the applications judge disallowed Ms. Goulding’s claim for undue hardship and ordered her to pay child support for Cameron on a going-forward basis in accordance with the Guidelines based on her 2013 net income of $67,700, resulting in a monthly payment of $587. With respect to the issue of retroactive child support, the applications judge ordered Ms. Goulding to pay back child support for only the months of July, August and September 2014. Mr. Goulding appealed the judge’s decision respecting both retroactivity of child support. The Newfoundland and Labrador Court of Appeal allowed Mr. Goulding’s appeal: Goulding v. Goulding, 2016 NLCA 6. However, the Court of Appeal sent the matter back to for a rehearing as it did not have sufficient information to determine the issue.
When the matter came before McGrath J. for rehearing some three years after the originating application for variation was commenced, it was necessary to analyze the four D.B.S. v. S.R.G. 2006 SCC 37 factors for retroactive support awards. Here are the key points in relation to each of the four factors:
The parties acknowledged that there was no delay on Mr. Goulding’s part in seeking child support after Cameron began to reside with him. Mr. Goulding filed his application only three days after Cameron moved in with him and he served Ms. Goulding with the application 30 days thereafter.
Both parents had been before the court on numerous prior occasions seeking variations of child support and both were fully aware of the operation of the Guidelines. Ms. Goulding was aware that both parents have an obligation to support their child and that, if the child is in the primary care of the other parent, unless a case of undue hardship is made out, child support is payable in accordance with the Guidelines. While Ms. Goulding may have been pursuing a claim of undue hardship seeking an order that she pay less than the table amount under the Guidelines, she made no payments at all to Mr. Goulding from November 2013 until she was ordered to pay child support in September 2014. McGrath J. also noted that Ms. Goulding continued to receive the Canada Child Tax Benefit for more than one year after Cameron moved out of her home, yet did not take that amount and pay it as child support to Mr. Goulding. Thus, McGrath J. concluded that there had been some blameworthy conduct on behalf of Ms. Goulding.
It was evident that Cameron would benefit from an award of back child support. Neither parent had an extravagant lifestyle. While both parents struggled to meet their monthly financial commitments, Mr. Goulding made approximately $16,000 less per year than Ms. Goulding.
Ms. Goulding’s hardship claim under section 10 of the Guidelines was based on two grounds: she had an unusually high level of debt, and she was supporting another child (her niece lived with her on a part-time basis while on breaks from university). The court rejected both of these grounds. First, the debt was not incurred to support the family as a unit prior to separation or for Ms. Goulding to earn a living. Second, there was no legal duty on Ms. Goulding to support her niece.
Despite rejecting the s. 10 hardship claim, McGrath J. considered Ms. Goulding’s debts and her support of her niece as factors on the more holistic view of Ms. Goulding’s claim for hardship in respect of back child support. On this holistic approach, it was evident that Mr. Goulding had a similar debt level, and as noted above, made $16,000 less per year than his ex-wife. McGrath J. was not satisfied that Ms. Goulding would suffer hardship to the extent that she should not be ordered to pay the full retroactive award.
As both parties were fully aware of the operation of the Guidelines and the fact that child support is due to the primary care parent in the table amount under the Guidelines, Ms. Goulding had effective notice that she was obligated to pay child support when Cameron moved from her home to that of her father. Mr. Goulding filed his application for child support only three days after the move and gave formal notice to Ms. Goulding shortly thereafter. Ms. Goulding knew that she would be called on to pay child support in accordance with the Guidelines and ought to have made provision for the payment of such amounts. However, she asked the court to exercise its discretion by not making an award back to the date of her effective notice.
In this regard, the court differentiated the case of a payor parent who claims hardship in respect of a claim for retroactive support for the period between the date of effective notice and the date of the award (the “first situation”) and the case of a payor parent who claims hardship in respect of a claim for retroactive support for a period prior to the date of effective notice (the “second situation”). Unlike the payor in the second situation (entirely retroactive), the payor in the first situation cannot credibly say “If I had known, I would have made different expenditure decisions.” Barring exceptional circumstances, a court should not be open to a plea of hardship from a payor in the first situation (such as Ms. Goulding) who fails to take prudent steps to set aside funds. To do otherwise would be to reward both delay (put off the date of the award as long as possible) and want of financial prudence (spend the money now, then plead hardship later).
Cameron was 18 years old when McGrath J. rendered her decision in this matter. To ensure that she obtained the benefit of the back child support payment while still a “child of the marriage”, McGrath J. ordered that the retroactive amount be paid within an 11-month period either in one lump sum or in monthly payments.
When exercising the discretion to order back child support for teenage children, a court must consider the four D.B.S. factors in a holistic fashion. A parent can be said to be acting in a blameworthy manner if the parent consciously chooses to ignore her obligations, and barring exceptional circumstances, a court will not be open to a plea of hardship in a situation where a parent has effective notice of a claim for back child support but fails to take prudent steps to set aside funds.
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