This case was heard by Justice Turnbull in the Ontario Superior Court of Justice. There are three children from the marriage. The parties separated in December 2005 and at that time negotiated a separation agreement. At the time of separation however, only one child, born February 1, 1990, required child support. Pursuant to the separation agreement, the Respondent was to pay $175.00 per month into an RESP and $129.00 per month towards an insurance premium on her life. The agreement did not have any terms with respect to table amount for child support under the Ontario Child Support Guidelines.
The Applicant brought a motion seeking retroactive child support and retroactive extraordinary expenses when the Respondent unilaterally stopped making payments towards the RESP and insurance. The Respondent did claim however that he was making payments in the amount of $150.00 directly to the child and the Applicant did not dispute this.
The Applicant prepared calculations with respect to child support payments and claimed that the Respondent was to pay the Applicant a sum of $9,925.32 in retroactive child support and that the Respondent not be given any credit for the payments of $150.00 per month which the Respondent had been giving to the child directly. The Respondent acknowledged the arrears in support in a document he had created calculating same, however, he had credited himself the $150.00 payments he had made.
Justice Turnbull was of the view that child support should be paid to the parent entitled to receive same and not the child unless there is an agreement in place between the parties that states otherwise. He went on to say that the parent who is entitled to the support has the discretion as to how to spend that money for the benefit of the child. On the facts, it appeared as though the Respondent gave the child $150.00 amount instead of the Applicant as he did not want her to derive any benefit from the money paid by him. Although Justice Turnbull was sympathetic to the Respondent’s request to take into account the $150.00 payments, he ordered that the Respondent pay $6, 861.00 in retroactive support.
With respect to the child’s extraordinary expenses, Justice Turnbull ordered that the Respondent pay the Applicant his proportional share from the day of the motion forward.
This case warns the paying parent to make child support payments directly to the other parent even if the child is an adult child of the marriage.