Not a week goes by that I do not hear the question: “can I pay child support directly to him/her (the child)?”. This question is usually followed by a discussion of why he or she (the other parent) is not spending the child support on the child. In this parent’s theory, the other parent is using the child support funds to go on extravagant trips and other luxury items that are not related to the child’s care. Hence, “why can’t I just pay him/her directly? Then atleast I will know that the funds are going toward the intended purpose.”
The answer to this question is that courts rarely allow child support payments to be made directly to a child; it is the exception rather than the rule. Courts in Canada have stated that compelling reasons must exist for payments to be made directly to a child. In Mylrea v. Benoit, 2003 CanLII 1975 (ON SC), the Ontario Superior Court responded as follows to a father’s request to set up a trust to pay child support directly to the children:
[31] Mr. Mylrea requests the right to limit the amount of child support that goes directly to Ms. Benoit to the sum of $248.00 each month, with the balance to be paid into a trust account for the benefit of the children. Again, even if I were inclined to do that – and I am not in the least – authority prevents me from doing so. In Simon v. Simon (2000) 1999 CanLII 3818 (ON CA), 1 RFL (5th) 119 (Ont.C.A.), MacPherson, J.A., in delivering the judgment of the court, said this (at page 134 of the Report):
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It may be that in some cases a court imposed trust to secure funds for a child’s future care and education would be appropriate. However, in my view, absent a good reason for imposing a trust, the court should not do so. The presumption should be that a custodial parent will do his or her best to provide for both the child’s immediate needs and his or her future care and education. Unless there is strong evidence establishing the need for a trust (e.g. the misuse of support payments by the custodial parent) I see no reason to interfere with the way in which the parent balances the present and future needs of the child in his or her custody.
(emphasis added)
In L. B. L. v. S. B., 2010 NBQB 339 (CanLII), Justice Walsh of the Court of Queen’s Bench of New Brunswick dealt with a situation where the payor mother was attempting to create her own system of child support payments to her child on the grounds that the father wasted funds meant for the child:
[65] On the totality of the evidence it is clear that the mother cannot stand the thought of paying child support directly to the father, despite the absence of any cogent evidence that the father was wasting the sums that he did receive through garnishment. By any means, by any claim, the mother has now sought to create her own system, to permit her to directly support or reward the children for her own purposes, to ignore the law’s requirements. The receipted claims she made in this case and the claims she has filed with Revenue Canada constitute clear evidence of her present approach. The irony is that the vast majority of the arrears that were terminated in May 2009 were for a period when the mother was having little, if any, contact with the children, and the children would appear to have forever lost this money owed to them (See: Beninger v. Beninger 2009 BCCA 145 (CanLII)).
[66] In these circumstances I apply Swiderski v. Dussault:
While D.B.S. [v. S.R.G. et. al., 2006 SCC 37 (CanLII)] at para. 109, opens the theoretical possibility that the payor parent can justify himself by showing total payments equivalent to the Guidelines amounts, this, I suggest, presupposes candour, openness and satisfactory proof of the amounts. None is present in this case.
There are at least two reasons why payors should not be able to create their own support regimes. The first is that the receiving parent usually has custody, and must be the one to make decisions about the child’s expenditures. A private unilateral scheme operated by the payor can be a method of control which undermines the authority of the custodial parent. The second reason is that the payor is in sole possession of the information about direct payments. Unless the payor is forthcoming about such payments in a timely way, the payee is at the mercy of the payor’s record-keeping …
(2009 BCCA 461 (CanLII),at paras. 38, 39) (emphasis added)
These cases stand for the proposition that child support is meant to maintain a child’s permanent home and to cover the incidentals that a custodial parent provides to a child (see Armaz v. van Erp, 2000 CanLII 22585 (ON SC) ). I often explain it this way to clients: just think of how much you might spend on the children or other incidentals if you were still living in the same home with the other parent. Wouldn’t it likely be more than you are spending right now? And regardless of whether these funds go directly toward the children or not, there are certain expenses the other parent must pay to keep the children’s quality of life similar to what they would have experienced if you were living with the children, correct?
As stated earlier, there are some exceptions to this rule, such as when the parents’ relationship is extremely acrimonious and the child lives away at school (see B. (T.T.) v. D. (P.H.), 2014 NBQB 164).
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