In Edden v Foley, 2024 ABKB 48, the Honourable Justice M.J. Lema granted an order for the immediate lump sum payment of child support arrears and that sufficient security can be attained by registering the child support arrears order at the Land Titles Office.
Justice Lema’s decision of child support arrears of $102,012.00 was outlined in Edden v Foley, 2023 ABKB 364. Justice Lema directed that the father must and has the ability to afford the arrears, despite uncertainty over his current income. Moreover, it was directed that if the parties are unable to agree on the pace of payments, the child support arrears would be set and determined whether the payments should be secured, and if so, how. In light of the parties’ inability to agree on the pace of payments, Justice Lema ordered an immediate payment of $102,012.00. The following factors were considered in awarding lump-sum child support arrears versus periodic payments in the 2024 ABKB 48 decision:
- Father’s failure to provide ongoing disclosure on timely basis, and no reason provided as to why the mother should have to wait months or years to receive the support, she should have received years ago;
- The age of the child being 14.5 years and could benefit from the support now versus possibly “aging out” before the arrears are paid in full;
- The father’s ability to pay the entire arrears based of his net worth of approximately $637,000, whether via the line of credit on his home, financing on his rental property, sale proceeds from property, liquid assets, or repayment of his shareholder-loan receivable;
- Ordering the father to pay the arrears would not cause hardship, and remedying the shortfall experienced by the mother and child is more significant than minimizing the father’s hardship.
- The mother had provided proposals of immediate payment and installments of arrears (seven months prior to this decision), of which the arrears would have been cleared before the end of 2023;
- The father has had the time value of the non-paid child support for the period 2011 to 2015, and will continue to have it as the mother’s pleadings did not include recovery of interest and no appeal to the issue of interest not being ordered on the arrears.
The father’s non-disclosure of income increases for the period 2011-2015 and failure to pay income-appropriate support for those years raised concerns of non- or under-payment of the child support arrears, hence security was warranted. However, Justice Lema concluded that no court order for security was necessary, and instead, registration of the arrears order on title against the father’s two properties would give the mother sufficient security.