Is it Too Late Now to Say Sorry? Attempts to Remedy Past Delinquent Behavior Do Not Constitute a Material Change
According to the Alberta Court of Appeal in the recent decision of Janiten v Moran, 2019 ABCA 380, a party who has income imputed to them for support purposes for reason of failure to disclose financial information, or failure to attend court altogether, cannot simply apply to fix the numbers retroactively after the fact by producing the required disclosure they initially refused to provide.
In Janiten v Moran, the recipient mother obtained orders for retroactive and ongoing child support based on an income imputed to the payor father, on the basis of his failure to provide his financial disclosure. The payor father was not present in court at the time that the support orders were granted. One year later, the father decided to produce his financial disclosure and applied to vary the support orders based on his evidence of his historical and current income. The father was successful. However, the mother appealed and was largely successful, with the ABCA holding that the father’s application to vary the support orders did not raise a valid change in circumstances. That is, while it may be true that the father’s willingness to cooperate with the court process including provide particulars as to his earnings, had perhaps changed, the “material change” test ought not encompass such changes to the extent that prior orders made on valid grounds can simply be undone.
In this case, there had been a prior court order granted to compel the father’s financial disclosure, and he had failed to attend court on two (2) occasions thereafter. In the mother’s view, the father’s application to vary constituted a collateral attack on orders made on valid grounds and, in the words of the ABCA, the father’s “very tardy disclosure compliance should not ground a successful application to vary or vacate” either order granted on the basis of his prior refusal to disclose.
Imputation of income is often a very necessary remedy sought by mothers or fathers in desperate situations. More often than not, parties who won’t disclose aren’t exactly keen to pay any kind of support voluntarily, so lack of transparency in income often goes hand in hand with a necessity of attending court to secure support – often by those with very little or no income to spare on lawyers. Here, the ABCA made an important decision towards protecting the integrity of the imputation of income remedy.