Where the mother delayed 15 years in seeking s.7 expenses, and the children to whom the expenses related were now 31 and 29 years old, the court held that she could not seek retroactive s.7 expenses from the father.
In response to the father’s 2016 motion to terminate child support and rescind arrears under a 2002 support order, the mother sought an order for retroactive s.7 expenses. She had not sought s.7 expenses in 2002 or since, and none had ever been ordered or paid. The court held that none of the factors in D.B.S. v. S.R.G. , 2006 SCC 37 favoured the mother. She did not have a reasonable excuse for not seeking s.7 expenses earlier. Although she said she couldn’t locate the father to make the claim, the court was not convinced. The father’s conduct was not blameworthy. He had paid the support ordered until 2007, after which his payments became less regular because the children were adults. While he should have brought a motion to change rather than using self-help, the court did not find this behaviour morally blameworthy. The circumstances of the children, now adults, did not justify making a s.7 order. Finally, a retroactive order for s.7 expenses would cause the father hardship given the delay, the lack of notice, and the children’s ages. The father should be entitled to rely on the certainty of the 2002 final order. It was not in the interests of fairness for a court to now order s.7 expenses: Gough v. Blanchard, 2017 ONSC 523 (Harvison Young J.).
Ramsden, Elizabeth; LAO LAW – The Bottom Line in Family Law, February 2, 2017.