Hajak v. Hemmings – A New Benchmark for Retroactive Child Support Claims 

“Children come first. It is time to ‘pay the piper.'” — Justice Mountford, Hajak v. Hemmings, 2024 ONSC 6062

In Hajak v. Hemmings, 2024 ONSC 6062, the Ontario Superior Court delivered a stern lesson on retroactive child support, setting a new benchmark for payor accountability in cases of blameworthy conduct. Amid a growing judicial emphasis on enforcing child support as a child’s inherent right, this decision pushes the envelope further by tackling egregious payor misconduct head-on. Justice Mountford’s ruling provides family law practitioners with a robust application of the Supreme Court of Canada’s framework for retroactive support, offering critical insights into how Courts evaluate such claims.

Case Overview

The case involved unmarried parents who separated in 2014 after a four-year cohabitation. They had two children, ages 14 and 10 at the time of trial. The parties had successfully resolved parenting issues through a consent order but were unable to settle financial matters.

The father initially paid child support of $650 per month (based on an income of approximately $45,000) until June 2020, when he ceased payments entirely. This amount was significantly below what the Child Support Guidelines would have required based on his actual annual income of over $70,000 during this period. The father had not made any payments for over four years by the time of trial, despite Court orders directing him to do so.

Key Legal Principles Applied

Justice Mountford systematically applied the analytical framework for retroactive child support established by the Supreme Court of Canada in the trilogy of D.B.S. v. S.R.G., Michel v. Graydon, and Colucci v. Colucci, as summarized in A.E. v. A.E., 2021 ONSC 8189.

The decision emphasizes several critical principles:

1. Child support is the right of the child, arising upon birth and existing independently of any statute or Court order.
2. Unmet child support obligations constitute a valid debt.
3. Retroactive awards are not confined to exceptional circumstances.
4. The Court should apply a presumption in favor of retroactive support when effective notice has been given.

Applying the Framework to Initial Applications

Following Justice Chappel’s reasoning in A.E. v. A.E. and Justice Sherr’s in M.A. v. M.E., 2021 ONCJ 555, Justice Mountford confirmed that the same analytical framework applies to claims for retroactive child support in originating proceedings, not just variation applications.

Blameworthy Conduct as a Determining Factor

The decision is particularly instructive on what constitutes “blameworthy conduct” sufficient to justify extensive retroactive support. Justice Mountford identified several factors:

1. Completely ceasing support payments without justification.
2. Failing to provide income disclosure as required by previous agreements.
3. Non-compliance with Court orders for financial disclosure.
4. Having substantial excess income while paying no support.
5. Prioritizing luxury expenses (a BMW payment) over child support obligations.

Justice Mountford was unequivocal: “He is the author of his own misfortune in this regard.”

Practical Implications for Practitioners

This case offers several practical takeaways for family law practitioners:

1. Effective Notice: The decision confirms that “effective notice” requires only evidence that the recipient broached the subject of child support. Here, the Court found that the 2016 mediation agreement—requiring annual income disclosure and adjustment—constituted effective notice, even without formal Court action until years later.
2. “Soft” Three-Year Limit: The Court explicitly found the “soft general limit” of three years inapplicable due to the father’s blameworthy conduct, reinforcing that this limit is truly discretionary. Unlike cases where payor good faith preserves the three-year limit (e.g., Hansen v. Clark, 2008 MBQB 324), here the father’s cessation of payments and non-disclosure eliminated any leniency.
3. Calculating Retroactive Support: The Court provided a clear year-by-year breakdown of arrears, demonstrating how retroactive support should be calculated and presented.
4. Payment Schedule: Despite the Applicant’s suggestion of approximately $800 per month for arrears, the Court ordered $1,000 per month, finding this more appropriate given the magnitude of arrears ($72,119).
5. Disclosure Requirements: The final order included specific requirements for annual exchange of tax information by June 1, with adjustments by July 1 each year.

Conclusion

Hajak v. Hemmings serves as a clear warning that Courts will not hesitate to order substantial retroactive support where a payor has failed to meet their obligations, particularly where there is evidence of deliberate avoidance or concealment of income. The case reinforces that child support is not a negotiable obligation, but a legal debt owed to the child from the moment of birth. The Court’s sympathy for the Applicant’s delay—attributed to the father’s non-disclosure and her limited resources—further underscores that recipient hesitation won’t always undermine a claim against a non-compliant payor.

The decision also highlights the importance of obtaining clear disclosure and support orders early in the process. Had formal orders been in place earlier, the substantial arrears might have been mitigated, benefiting both parties and, most importantly, the children. When advising payor clients, this case underscores the importance of transparency about income, compliance with disclosure obligations, and maintaining support payments even during disputes. For recipient clients, it emphasizes the value of seeking formal disclosure and support orders, even when informal arrangements seem to be working. As Courts continue to prioritize children’s financial rights, Hajak v. Hemmings signals a judiciary increasingly unwilling to tolerate payor excuses—practitioners should brace for more robust retroactive awards in similar circumstances.

Let’s continue to elevate the practice of family law in Ontario!

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.