T. Set-Off

AuthorJulien D. Payne - Marilyn A. Payne
Pages474-475

Page 474

A court may order child support payments or arrears to be set off against monies due to the obligor by way of a matrimonial property entitlement,158or pursuant to an order for costs.159

In Jamieson v. Loureiro,160 the British Columbia Court of Appeal upheld a chambers judge’s refusal to order an equitable set-off of the costs against court-ordered arrears of child and spousal support in the global amount of $25,083 and the husband’s future child support obligations. Citing D.B.S. v. S.R.G.161 in support of the premise that child support is the right of the child, the British Columbia Court of Appeal stated that it was "unable to conceive of a case in which set-off would be allowed against future child support" and "it would be a very rare case in which one would consider set-off against arrears of child support." In its opinion, support to which a child is entitled should not be lost because the person to whom the support is payable may owe, in another capacity, amounts to the payor. There is simply an insufficient connection and an absence of manifest injustice in requiring the payor to pay the full amount of support, even if the costs related to an application to vary child support.

A set-off of child support against costs will be deemed inappropriate where the financial well-being of a child would be thereby undermined. Faced with that contingency, the court may postpone payment of the court-ordered costs.162

Where an order for child support is granted following a change of custody, the court may direct that arrears outstanding under a previous order shall be set off against the amounts payable under the new order by means of a designated monthly deduction from the currently payable amount under the applicable provincial table set out in the Federal Child Support Guidelines.163

Page 475

Given the different income tax treatment accorded to periodic child support and periodic spousal support, a court should not order a direct set-off of child support payable to the custodial parent and spousal support payable by that parent.164

[158] Laskosky v. Laskosky, [1999] A.J. No. 131 (Q.B.); Cotey v. Cotey, [2002] B.C.J. No. 2726 (S.C.); T.D.B. v. L.N.U., 2010 NBQB 408; Etchegary v. Etchegary (1990), 81 Nfld. & P.E.I.R. 189 (Nfld. U.F.C.); Maskell v. Maskell, [1999] N.S.J. No. 424 (S.C.); Robski v. Robski, [2001] N.S.J. No. 454 (S.C.); Azimi v. Mirzaei, [2007] O.J. No. 5007 (C.A.); Bolen v. Bolen, 2010 SKQB 202; see also Risdale v....

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