Warzonek v. Gourlay, 2012 ONCJ 140

Milton Registry No. 298/89 DATE: 2012·I·17 CITATION: Warzonek v. Gourlay , 2012 ONCJ 140 ONTARIO COURT OF JUSTICE RE: MARY WARZONEK — Applicant AND JONATHAN WESLEY GOURLAY — Respondent BEFORE: Justice Roselyn Zisman HEARD ON: 14 November 2011; and 22 December 2011 COUNSEL: Applicant mother, Mary Warzonek — on her own behalf David J. Cameletti — counsel for the respondent father, Jonathan Wesley Gourlay JUSTICE R. ZISMAN ( endorsement ):— 1: INTRODUCTION [ 1 ] This is a motion by the respondent (“father”) to change the final orders of Provincial Judge A. James Fuller dated February 27, 1990 and July 7, 1992.

The father is requesting an order that child support for Emily Jaye Alexandra Warzonek (“Emily”) born on […], 1989, terminate as of June 30, 2007 and that any support arrears be rescinded. [ 2 ] The applicant (“mother”) is agreeable to child support being terminated as of May 1, 2009. She is seeking that all arrears that accumulated from 1994 to 2003 be paid by the father. [ 3 ] The trial proceeded before me on November 14 and December 22, 2011. Both parties testified as did the father’s wife, Linda Gourlay. A representative from the Family Responsibility Office was subpoenaed to bring its file.

On consent, several documents from the file were entered as exhibits. Also on consent, Emily’s tax returns for 2007 to 2009, her college records and documents regarding her medical condition were filed as exhibits. [ 4 ] Based on the testimony and the documents filed, the following background information and chronology of enforcement history were undisputed. 2: BACKGROUND [ 5 ] The parties were never married or resided together. They are the parents of Emily. [ 6 ] The final order of Judge Fuller dated February 27, 1990 provided that the mother have custody of Emily, that the father

pay child support in the amount of $200.00 per month as of November 1, 1989 and that arrears of $800.00 be discharged at the rate of $50.00 per month as of March 1, 1990. Support to be indexed pursuant to

section 38 of the Family Law Act, 1986 , S.O. 1986, c. 4. Such support to be enforced through the Director of Support and Custody Enforcement (“the Director”) unless withdrawn. [ 7 ] On February 7, 1992, the previous order was amended to provide that support was to be indexed pursuant to subsection 34(5) of the Family Law Act , R.S.O. 1990, c. F-3 [ 8 ] In the course of enforcement proceedings, there was an order by Provincial Judge F.

Stewart Fisher dated December 6, 1993 requiring the father to pay the ongoing support payments of $222.53 as of January 1, 1994 and the default hearing was adjourned to January 18, 1994. [ 9 ] A statement of arrears filed in those proceedings indicated outstanding arrears of $3,871.14 as of December 22, 1993. [ 10 ] A notice of withdrawal dated January 20, 1994 was filed with the Director. [ 11 ] On January 14, 2003, the mother sent a letter to the Director, Family Responsibility Office (“FRO”) to reactivate her file and re-register the court orders of February 27, 1990 and February 7, 1992.

The mother attached another letter dated July 26, 2001 that had also requested FRO reactive the file. That letter stated that she withdrew from the system in 1994, continued to receive sporadic payments but received nothing since 1996.

The mother’s letter of January 14, 2003 states, “I’m trying hard to understand why I waited so long to send it and why I waited so long to follow up.” [ 12 ] The mother submitted a statement of arrears to FRO, sworn January 22, 2004, indicating arrears owing by the father of $28,689.41. [ 13 ] FRO sent correspondence to the father, dated April 30, 2003 advising him that the court order of February 27, 1990 was registered with FRO for enforcement and provided information regarding payment. [ 14 ] FRO sent the father a further letter dated June 17, 2004 indicating that the outstanding arrears as of June 17, 2004 were $3,757.08. [ 15 ] There was a default hearing scheduled for April 26, 2005.

The statement of arrears filed in support of that hearing indicated outstanding arrears as of November 4, 2004 were $5,114.18.

The statement also indicates that just prior to January 20, 1994, the date the order was withdrawn from FRO the outstanding arrears were $4,093.67 and then as of May 1, 2003 when the order was re- registered, the outstanding arrears were $226.75. [ 16 ] On May 10, 2005, the father entered into a temporary consent order on the default proceeding and agreed to pay the ongoing child support of $277.90 and $200.00 per month on account of the arrears which as of May 2, 2005 where indicated to be $6,684.30. [ 17 ] As the father did not attend the next court hearing on the default on September 27, 2005, a warrant for his arrest was issued. [ 18 ] On February 7, 2006, the father entered into a final default order requiring him to pay ongoing child support of $277.93 per month as of March 1, 2006 and a further $200.00 per month on account of the outstanding arrears.

As of January 30, 2006, the outstanding arrears were $2,827.32. [ 19 ] On March 12, 2008, the father submitted an application to discontinue enforcement of ongoing support to FRO on the basis that Emily was 19 years old and no longer in school fulltime and was working. [ 20 ] On April 22, 2008, FRO advised the mother that it received information from the father that, as of February 1, 2008 Emily was no longer entitled to support and, unless she responded, FRO may stop collecting ongoing support. [ 21 ] On May 16, 2008, the mother advised FRO that she wished to suspend support payments as of February 1, 2008 as Emily was currently working part time, had taken time out of school to decide her career path but that she intended to return to school in September 2008. [ 22 ] On December 21, 2009, he father submitted a further application to discontinue enforcement of ongoing support to FRO on the basis that, since June 2009, Emily was no longer in school and was working full time. [ 23 ] The mother filed a notice of terminating event with FRO indicating tha,t as May 1, 2009, the father’s child support obligation for Emily ended. [ 24 ] The father commenced this motion to change, without counsel, on October 1, 2010.

At that time, he was requesting that child support terminate as of August 1, 2010. The FRO statement of arrears indicates that as, of October 5, 2010, there were no arrears owing. [ 25 ] On November 5, 2010, the father received correspondence from FRO advising that the mother provided FRO with a claim for $23,118.80 for the period from March 1, 1990 to April 1, 2003 that was added to his account. [ 26 ] The FRO statement of arrears indicated that, as of November 25, 2010, the father owed lump-sum support arrears of $22,706.86. 3: EVIDENCE AT TRIAL REGARDING SUPPORT

PAYMENTS AND ENFORCEMENT [ 27 ] The father testified that in 1993 he began to have trouble paying the ongoing court ordered child support. By the end of 1993, FRO had begun enforcement proceedings. The mother agreed to withdraw the order from FRO and they agreed that he would pay what he could and, in lieu of cash payments, he would do work for the mother. [ 28 ] He testified that he estimated that from 1993 to 2003, he had paid the mother about $7,300.00 in cash and purchased items for Emily worth about $8,640.00.

He also testified that he maintained and repaired the mother’s cars, purchased parts for her cars, gave her the use of his cars, did renovations to her home and purchased and repaired Emily’s car. He prepared a chart, which was filed as an exhibit, of all the things he could recall that he did for the mother and the items he had purchased for Emily. In total, he estimated that he purchased or supplied services worth $8,640.00.

He testified that the chart only represented about 50 to 60% of what he did or purchased. [ 29 ] Linda Gourlay, the father’s wife, corroborated the father’s evidence that he did repairs on the mother and Emily’s vehicles and renovations to the mother’s home.

She testified that she saw the mother also weekly during 1994 to 2003 and she never complained about the father’s not paying child support. [ 30 ] The mother agreed that the father had asked her to withdraw the support order from FRO but she testified that she felt pressured to do so. [ 31 ] The mother testified that she did not pursue the arrears from the years 1993 to 2003 as she was worried that the father would withdraw his relationship with Emily.

In cross-examination, the mother further testified that she did not pursue the arrears because she could not afford a lawyer, she thought FRO was her lawyer and relied on it and she was worried about Emily. [ 32 ] The mother testified that she always expected that the father would pay child support and that she never agreed that the work he did was in lieu of support. She further testified that, in the statement of arrears that she filed with FRO, she gave him credit for some of the car repairs although she agreed that it did not give him credit for the home repairs he did.

She testified that items that he bought for Emily were gifts and she never considered or agreed that these items were instead of the father’s obligation to pay child support. [ 33 ] The father agreed in cross-examination that the mother had asked him for child support and he paid what he could. [ 34 ] Both the father and Ms. Gourlay testified that they had no prior knowledge that the mother had registered the order for enforcement prior to receiving notification from FRO on April 30, 2003. [ 35 ] Ms. Gourlay took on the responsibility of dealing with FRO on behalf of her husband.

She confirmed that she had prepared and sent in both applications to FRO to discontinue child support for Emily in 2003 and in 2009 and in response was advised by FRO that Emily was either in school or returning to school. They only found out Emily’s school history as a result of the court proceedings. [ 36 ] After FRO began to enforce the child support orders, the father and Ms.

Gourlay both testified that they were never advised by the mother that she was pursuing child support arrears from 1993 to 2003. [ 37 ] The mother testified that, when she initially prepared the statement of arrears that she filed with FRO in 2003, she prepared a chart indicating arrears from 1989 to 2003 to be $28,689.41. In cross- examination, she agreed that, from 1993 to 2003, she had only contacted FRO on July 1, 2001 and January 14, 2003 regarding registering the court order for enforcement. [ 38 ] The mother testified that, in 2003, she had been told by FRO that the arrears could not be enforced.

She then testified that, from 2003 to 2010, she did not ask FRO to collect the arrears because she was concerned about Emily’s heath and the outstanding support arrears were not her first priority. [ 39 ] In response to my question regarding her dealings with FRO, the mother stated that she had nothing in writing that FRO would not collect the arrears from 1993 to 2003 and that she was not aware of the court dates for the default hearings. [ 40 ] The mother stated that then in 2010, she was told that FRO would collect the arrears from 1993 to 2003 and she filed a further statement of arrears that she believed correctly indicated the arrears, namely being $23,118.80. [ 41 ] The mother filed as an exhibit her notes with respect to discussions with FRO.

The notes show that she was in contact with FRO from December 2004 to April 25, 2005, that she was told the steps that FRO was taking to enforce the order and the court date. The mother was also told about the arrears as of December 9, 2004 being only $5,785.60. [ 42 ] The father testified that he was in shock when he received the FRO statement dated November 5, 2010 indicating arrears of $23,118.00 had been added to his account.

He had just received a statement of arrears on October 5, 2010 indicating there were no arrears. [ 43 ] The most recent statement of arrears, filed as an exhibit, indicates that, prior to FRO’s adding the arrears of $23,118.80 on November 4, 2010, the father had overpaid support by $411.94. FRO then re-adjusted the arrears as a result of the mother’s advising it to terminate child support as of May 2009. The outstanding lump sum owing according to the FRO statement is therefore $15,959.64. FRO suspended enforcement as of March 3, 2011 pending the results of this trial. 4: FATHER’S CIRCUMSTANCES

[ 44 ] The father and his wife, Lynda Gourlay, have 3 children aged 18, 16 and 15. They are all in school. The father has been employed as an electrician for the last 15 years. Ms.

Gourlay is also employed. [ 45 ] Based on the financial documents filed the father’s income is as follows: Year Income 1994 $2640.00 1995 $31.00 1996 $1,024.00 1997 $31,870.00 1998 $37,380.00 1999 $35,118.00 2000 $35,380.00 2001 $22,700.00 2002 $18,313.00 2003 $13,280.00 2004-2006 No information 2007 $52,000.00 2008 $60,000.00 2009 $65,000.00 2010 $75,000.00 [ 46 ] The father’s only assets consist of a home owned jointly with his wife which has a line of credit attached to it and a 2002 Ford motor vehicle.

He has no savings or investments. 5: EVIDENCE REGARDING EMILY [ 47 ] The father initially saw Emily a few times a week but after 2003, contact then became more sporadic. He testified that she would call him if she needed something. He helped her when he could including, helping her with her car. He attended her high school graduation and she told him in 2006 or 2007 that she wanted to continue in school but that she was not sure what she wanted to do. [ 48 ] The father testified that he was not aware of Emily’s health issues.

However, in cross-examination, he agreed that, over the years, he was aware that Emily was upset and depressed but he denied that the mother told him “many times” about how upset Emily was and how much she missed her father. [ 49 ] The father testified that, although he was aware that Emily went to Sheridan College for a course in interior decorating, he had no knowledge of her grades or how long she attended school. He was aware that she had some employment. [ 50 ] The mother testified that Emily had been depressed since 1996 or 1997 and, although she missed a lot of high school, she was able to graduate.

Emily had wanted to enrol in an early child education program but instead enrolled in the interior decorator program at Sheridan College. She was not eligible for any student loans due to the mother’s income. [ 51 ] Emily’s transcript from Sheridan College was filed as an exhibit along with information regarding the course requirements. A full course load is six or seven credits each semester for the two year course. In the fall 2007 semester, Emily was registered for six courses, she withdrew from one course, failed two courses and received Ds and a C for the remaining courses.

Emily did not attend the spring 2008 semester because of emotional problems. In the fall 2008 semester, Emily returned to school and took three night school courses and received a B+ in two courses and a C in the other course. In the winter 2009 semester, she took four courses. She failed three courses and received a C+ in the other course. [ 52 ] Emily did not return to school. She volunteered at the Olympic Games in Whistler, British Columbia and remained there. She is currently employed.

Her plan is now to move to Australia. [ 53 ] Based on the financial disclosure filed, Emily’s income from 2007 to 2009 was as follows: 2007 $11,963.00 2008 $11,126.00 2009 $14,321.00 [ 54 ] To substantiate Emily’s emotional difficulties, the mother filed a letter from Emily’s doctor. Dr. Boxall confirmed that Emily had been her patient from April 1990 and that she was treated from May 2006 to April 2010 for psychiatric issues. In April 2007, Emily was diagnosed with major depression.

From April 2007 to April 2010, she was under psychiatric treatment including four hospitalizations related to suicide attempts; she attended regularly counselling and was on medication. Despite intensive treatment, she continued to have difficulties with depression, sleep and concentration. It was Dr. Boxall’s opinion that Emily was unable to complete her schooling in 2007 to 2008 because of her illness. [ 55 ] The mother also filed copies of receipts from various counselling services Emily attended from 2006 to 2009.

She agreed that some of these expenses had been paid by her employer health plan. [ 56 ] In cross-examination, the mother agreed that no one had ever told her that Emily could not handle school full time or that she was unable to work. [ 57 ] The mother testified that, over the years, she struggled with her rights to pursue child support and Emily’s needs. She

testified that, although Emily was now 22 years old, she was still struggling like a teenager. 6: ANALYSIS 6.1: When did Emily Cease to Be a Dependent Child? [58] There is no issue in this case that there has been a material change in circumstances as Emily is no longer a full-timestudent.

The issue to be determined is the date that she ceased to be entitled to child support. [59] In his closing summation, counsel for the father submitted that, on the basis of the evidence presented at trial, he wasprepared to agree that Emily was a full-time student up to January 2008 being the end of her first semester at Sheridan College, eventhough he submits Emily was not fully committed to the course of study and did not successfully pass all of the courses. [60] However, thereafter he submits she should no longer be entitled to child support.

She did not attend school for thewinter semester from February to May 2008. When she returned to school in September 2008, she only attended part-time taking threeout of six courses and then in the winter semester of 2009 she only took four courses and failed three of those courses. [61] The mother submits that Emily did the best she could in view of her psychiatric issues and support should be payable upto May 2009. [62] Subsection 31(1) of the Family Law Act, R.S.O. 1990, c.

F-3, as amended, provides that each parent has an obligation toprovide support for his or her unmarried child who is a minor or is enrolled in a full-time program of education, to the extent that theparent is capable of doing so. [63] The onus of establishing entitlement to support for an adult child is on the parent seeking the support. See Rebenchuk v.Rebenchuk, 2007 MBCA 22, 212 Man. R. (2d) 261, [2007] 5 W.W.R. 87, 389 W.A.C. 261, 279 D.L.R. (4th) 448, 35 R.F.L. (6th) 239,[2007] M.J. No. 130, 2007 Cars​well​Man 59 (Man. C.A.); Vohra v. Vohra, 2009 ONCJ 135, 66 R.F.L. (6th) 216, [2009] O.J.

No. 1446,2009 Cars​well​Ont 1860 (Ont. C.J.). [64] Most courts have followed a flexible approach to what constitutes a full-time program of education. A full-timeprogram does not necessarily require full-time attendance or that a full course load is taken. What is required is meaningful andconsistent participation in accordance with the program’s purposes and objectives. See Wilson v. Wilson, , 117A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 Cars​well​Ont 3838 (Ont. S.C.); Sullivan v. Sullivan (1999), 126O.A.C. 292, 50 R.F.L. (4th) 326, [1999] O.J. No. 3973, 1999 Cars​well​Ont 3340 (Ont. Div.

Ct.); Lall v. Lall, 2009 ONCJ 96, [2009] O.J.No. 1273, 2009 Cars​well​Ont 1629 (Ont. C.J.). [65] The court must examine the facts of each case to make a determination. I have also considered that it is becoming verycommon for many students to take less than a full course load in each semester at college in order to obtain the highest grades possible sothat they can improve their opportunities of obtaining employment after graduation. [66] In this case, the mother testified that Emily was interested in taking an Early Childhood Education course.

The onlyexplanation given as to why she took the interior decorating course at Sheridan College was that it was close to their home. [67] Whether it was a combination of not being interested or having emotional difficulties, Emily was not particularlysuccessful in her first semester.

However, as Emily did register for a full course load and attended school, I find that the mother has metthe onus of proving that Emily is entitled to child support for the fall 2007 semester. [68] However, from February 1, 2008 I find that the mother has not met the onus of proving that Emily was in full-timeattendance at school. [69] The mother filed a notice with FRO indicating that she wished child support payments to be suspended from February 1,2008 as Emily was working part-time but planning to return to school in September 2008 and was taking some time to consider her careerpath.

The FRO statement of arrears filed indicates that child support continued to accumulated during this period of time. The motherdid not explain in her evidence why she should be entitled to child support for Emily during this time frame except to submit that Emilydid subsequently return to school. I find that he father should have no obligation to pay child support from February 1, 2008 until theend of August 2008 when Emily was not attending school. [70] An adult child who withdraws from school can return to school and once again be entitled to child support.

The mothersubmits that child support should be payable because Emily did return to school in September 2008. [71] However, it was the mother’s evidence that, for the fall 2008 semester, Emily only took three night courses and wasworking part-time. In the winter 2009 semester, although Emily took four courses, she failed three courses. [72] The mother did present evidence that Emily has had ongoing psychiatric issues since April 2006. This wassubstantiated in the letter from Dr. Boxall. Nevertheless, Emily was still able to complete high school and her first semester at SheridanCollege. Dr.

Boxall’s letter only states that Emily could not complete her schooling from 2007 to 2008 because of her illness and thatshe was permitted to return to school in 2008 to 2009. Although it is clear that Emily had psychiatric and emotional problems, there is noevidence that, when Emily returned to school in September 2008, she could not handle a full course load due to her problems. There isno evidence of the reason she only took three night school courses in the fall 2008 semester or why she failed three out of the fourcourses in which she was enrolled for the winter 2008 semester.

There is also the evidence that Emily was able to work several jobs in2007, 2008 and 2009.

[ 73 ] As of September 2008, on the basis of the evidence, I draw the reasonable inference that Emily was only going to school part-time, was working part-time and that she was still not particularly interested or committed to her course of study at Sheridan College. Therefore, the mother has not met the onus of establishing that Emily should be entitled to ongoing child support as of September 2008. [ 74 ] In

summary, I therefore find that father’s obligation to pay child support should be terminated as of February 1, 2008. 6.2: Can the Mother Now Claim that the Father’s Child Support Obligation from 1993 to 2003 Be Based on His Actual Income or that Income Be Imputed to Him for Those Years? [ 75 ] In the mother’s closing submissions, she asked the court to base the father’s child support obligation from 1993 to the present time based on his actual income as now disclosed through the financial disclosure filed in these proceedings.

The mother’s pleadings and trial management brief requested payment of child support arrears for the years from 1994 to 2003 based on the outstanding court orders. At no time did the mother ever indicate that she would be asking that there be a retroactive recalculation of the father’s child support obligation.

This issue was raised for the first time in her closing submissions. [ 76 ] Although some leeway must be given to an unrepresented litigant, to permit the mother to seek such relief at the end of the case would be grossly unfair to the father and his counsel. [ 77 ] The mother further submitted, for the first time in final submissions, that income should be imputed to the father as she believed he earned more income than disclosed.

No evidence was led at all on this issue except that the mother testified that the father never wanted to pay child support, that he had threatened to quit his job rather than pay child support and that he had a dismal record of compliance with the court order for payment of his child support. [ 78 ] The father denied that he ever threatened to quit his job rather than pay child support. He did agree that he ran into financial problems in 1994, lost his job and eventually returned to school.

He also admitted that in 2005 he fell behind in support payments for various reasons and was subject to default proceedings but he was able to pay off the outstanding arrears. [ 79 ] I would not permit the mother to now raise this issue at the end of her case without prior notice to the father and his counsel.

In any event on the evidence presented, there would be no basis to find that income should be imputed to the father. 6.3: Should the Father Be Required to Pay the Outstanding Child Support Arrears from 1994 to 2003 Pursuant to the Court Orders of 27 February 1990 and 7 July 1992? [ 80 ] This is the most difficult and unique aspect of this case.

The mother did not enforce the court order for support from 1994 to 2003 and then, although she reinstated the court order with FRO for enforcement of the ongoing support at that time, no enforcement was taken with respect to the arrears until 2010. [ 81 ] It is submitted by father’s counsel that the parties agreed that child support would not be enforced from 1994 to 2003 and that their agreement should be respected by the court. It is further submitted that because of the mother’s lack of enforcement of these arrears, the doctrine of laches should apply.

Father’s counsel conceded that the line of cases that applied the doctrine of laches were all prior to enforcement of support orders by government agencies. In the alternative, it is submitted that by analogy the court should consider the factors regarding retroactive support as outlined in the case of D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J.

No. 37, 2006 Cars​well​Alta 976. [ 82 ] I agree with father’s counsel that applying the general principles of D.B.S. v. S.R.G. , supra , is an appropriate framework to analyze the facts in this case in determining if the arrears should be rescinded.

I therefore have considered the reasonableness of the delay by the mother in enforcing the arrears, the conduct of the father, the circumstances of Emily and the hardship a retroactive order could cause the father. [ 83 ] It is submitted by the mother that she never waived the father’s obligation to pay the court ordered child support from 1993 to 2003, that she never agreed that he could provide her with services in lieu of child support and that she did not pursue the father’s support obligations to her from 1994 to 2003 issue due to concern about Emily.

It is further submitted that, when she did ask FRO to reactivate the file for enforcement, she received incorrect advise from the FRO and that it was only in 2010 that FRO advised her that she could enforce the arrears. [ 84 ] I accept the mother’s evidence that she withdrew the order from FRO in 1994 as a result of some pressure from the father. I also accept the father’s evidence that he did perform services for the mother, bought things for Emily and paid some cash in lieu of paying support.

But I do not accept that those services or the cash payments he made would have been equivalent to his court-ordered child support obligation, particularly when it appears he was back to work by 1997 and thereafter from 1997 to 2000 earned from $31,870 to $37,135, although from 2001 to 2003 it appears that he again had a reduced income.

Accordingly, for many of the years that the support was payable, the father had the financial means to pay child support as ordered and he should have done so. [ 85 ] However, based on the mother’s evidence, she was conflicted about whether to pursue the issue of child support and it does not appear from her evidence that she took any active steps to do so until 2003. Although she testified that she did not pursue child support because of her concern about Emily’s health and her concern that the father would abandon Emily, it appears from Dr.

Boxall’s letter that issues regarding Emily’s mental health did not arise until 2006. There is also no evidence that the father ever stopped or

threatened to stop exercising access to Emily if the mother pursued child support. [ 86 ] Even if the mother sincerely believed that she had never gave up her right to child support and always expected the father to pay, I accept the father’s evidence that the mother’s failure to pursue the payment of child support for all of those years lulled him into the belief that he was not required to pay the child support and that the mother accept the services that he performed and amount he paid in lieu of payment of his court-ordered child support payments. [ 87 ] When the mother finally requested that FRO reactivate the enforcement of the child support order in 2003, the mother either through mistake or a misunderstanding with FRO did not pursue the arrears.

Based on the mother’s own notes of her discussions with FRO, she was aware of the dates for the enforcement hearings and she was aware of the amount of arrears being enforced did not include the arrears from 1994 to 2003.

Although FRO was responsible for enforcement, in my view the mother should have taken some steps to rectify FRO’s error and taken active steps to enforce those arrears. [ 88 ] While I appreciate that child support is the right of the child and cannot be waived by a parent’s failure to act, at some point the prejudice to the payor becomes so overwhelming that in exceptional circumstances, the arrears must be rescinded. I have also considered that the purpose of a requirement that a parent pay child support is to meet the ongoing needs of a child.

It is not the intent of the requirement to pay ongoing child support that a parent can refrain from seeking the child support that was ordered for an unreasonable length of time so that it can accumulate and then demand a large amount of arrears at some later date. [ 89 ] In considering the merits of this case, I find that there was no reason for the mother not to request the FRO to reactive her file after she withdrew it in 1994 and became dissatisfied with the father’s lack of payment of child support.

I find that the father was lulled into the belief that the mother was no longer pursuing child support and was satisfied with their informal arrangements. I find that subsequent to the mother reactivating the file for enforcement in 2003, the father was again lulled into the belief that the mother was not enforcing the arrears from 1994 to 2003. He consented to a final default and paid the arrears that owed at that time. [ 90 ] I find that the mother’s attempts to now collect arrears that accumulated over almost 10 years from 1994 to 2003 is highly prejudicial to the father.

It would now be impossible to determine the amount of funds he paid during that period or what credit he should be given for some of the services he performed for the mother which she agreed were in lieu of child support payments. It would be impossible to now sort this out with any fairness to the father. [ 91 ] There was no evidence that Emily suffered any specific financial hardship as a result of the father’s non-payment of child support. However, I accept as a general principle that the father was required to pay child support and Emily would have benefited from that support.

But in this case, I find I am obligated to exercise my discretion and rescind any arrears because of the mother’s inordinate delay in taking any steps to pursue these arrears and the hardship on the father of now being required to pay those arrears. [ 92 ] I therefore order that any arrears that accumulated from 1994 to 2003 are rescinded. [ 93 ] There shall be a final order as follows: 1. The orders of Judge Fuller dated February 27, 1990 and July 7, 1992 are varied as follows: (

a) The respondent’s obligation to pay child support for Emily Jaye Alexandra Warzonek born on […], 1989 is terminated as of February 1, 2008. (

b) The respondent’s arrears from January 20, 1994 to April 30, 2003 are rescinded. 2. Support deduction order to issue. [ 94 ] If the parties cannot settle the issue of costs, the respondent shall serve and file his written submission for costs, not to exceed 3 pages, along with his written bill of costs within 2 weeks and the applicant shall serve and file her submissions 2 weeks thereafter. The costs submissions should be submitted to the judicial secretary. ___________________________ Justice Roselyn Zisman DATE: 17 January 2012