T. Overpayment

Author:Julien D. Payne - Marilyn A. Payne

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Where there has been an overpayment of child support, the court may, in appropriate circumstances, order a set-off or a repayment or otherwise make a necessary adjustment between the spouse or former spouses.290However, a court should not impose a financial

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burden on the recipient that will penalize the child,291nor should it excuse the conduct of a payor who overpays and knowingly does nothing about it for a substantial period of time that is likely to generate a hardship in the event of repayment.292Variation of a child support order may be justified by a change in the parenting arrangements resulting from the children’s change of residence, but the court may decline to order that resulting overpayments be reimbursed where the recipient parent needed lengthy rehabilitation to get back on her feet and the payments received had been used for the benefit of the children.293Parents who receive payments for expenses under section 7 of the Federal Child Support Guidelines have an obligation to terminate those payments when the expense is no longer incurred; a failure to do so warrants a reimbursement order.294Section 17(1) of the Divorce Act empowers a court to retroactively vary an order for child support, but the court may decline to so exercise its discretion where the underlying basis is referable to the delay of the applicant in pursuing a claim for overpayments previously made. Limited retroactivity may, nevertheless, be deemed appropriate where the applicant shows a material change in the parenting arrangements over the preceding few months.295A court may order reimbursement of overpayment of child support by means of an order for retroactive variation of the order, but should decline to do so when the payments were made with knowledge of the material facts.296Retroactive variation of a child support order by way of an order for lump sum reimbursement of overpayments may be deemed appropriate because of the child support recipient’s failure to disclose reinstatement of a provincial financial subsidy for the disabled adult child.297An order for child support may be reduced and backdated, with overpayments to be deducted from future payments, subject to a designated maximum monthly deduction.298

Overpayments of support for one child may be set off against the payor’s share of section 7 expenses respecting other children.299A court may refuse to set off an overpayment under a previous order against a current variation order for child support.300

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A belated application for reimbursement of an alleged overpayment...

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