CC. Fixing of Arrears; Payment by Instalments

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 480-480

Page 480

Arrears of support may be recalculated by applying the Guidelines even though one of the orders in default with respect to the obligor’s sequential family relationships predated the implementation of the Guidelines; common sense must prevail where there is no expert accounting and tax evidence to assist the court.²⁰²Where a lump sum order for child support arrears would be unrealistic, the court may order the arrears to be paid by designated monthly instalments.²⁰³A court may postpone the payment of child support arrears for a reasonable period of time to make reasonable terms for payment, if it seems appropriate, taking into account all the circumstances of a case, including the present financial circumstances of the obligor. Any such accommodation presupposes that there has been complete disclosure of the obligor’s financial circumstances.²⁰⁴Arrears of child support may be discharged by part payment under the terms of minutes of settlement that address both past and future child support obligations. Where the parties acknowledge the minutes of settlement to be a binding domestic contract within the meaning of the Ontario Family Law Act as well as being capable of incorporation in a court order, the doctrine of substantial performance may be applied to the bilateral contract, where payment of the second of two instalments was late because of the delay of the Canada Revenue Agency in providing a tax refund.²⁰⁵

[202] O’Connor v. O’Connor, [1999] O.J. No. 362 (Gen. Div.).

[203] O’Connor v. O’Connor, ibid.

[204] Best (Guardian ad litem) v. Young, [1999] B.C.J. No. 280...