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Epstein’s This Week in Family Law | Overpayment

Provincial court judge found to have discretion to order the repayment of an overpayment of spousal support in recent decision.

Epstein’s This Week in Family Law

By: Philip Epstein

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Court Can Order Repayment of an Overpayment of Spousal Support

Czerlau v. Czerlau, 2015 CarswellOnt 2897 (Ont. S.C.J.): I would not have thought that there was much doubt of the right of a court to order a spouse to repay an amount of spousal support that was overpaid by the payor. The spousal support recipient in this case appealed an order made in the Ontario Court of Justice that required the recipient to repay an overpayment during a two-year period. The parties had entered into a separation agreement that had specific provisions for spousal support, and a formula for how support would work if the recipient earned specific amounts.

The support payor made specific support payments on a without prejudice basis. The separation agreement provided a mechanism for the calculation of any overpayment, but it had no mechanism for repayment of same. That may be a lesson for future drafters of these kinds of formula agreements.

Since the agreement did not address a specific mechanism to deal with any overpayment, the Court found that it had the discretion to order repayment over two years. That seems to me to be eminently fair. I would have thought that the Court also had the discretion to order the immediate repayment. It seems to me that the provincial court judge acted entirely appropriately, and I am puzzled as to why the matter was further appealed. Given the history of how the parties had dealt with each other before with respect to formulaic payments, the provincial court judge exercised his discretion appropriately. The Ontario Court of Justice has jurisdiction to interpret the agreement because it was filed pursuant to section 35 of the Family Law Act and that triggers the Family Responsibility and Support Arrears Enforcement Act, as well as section 8 of that Act that allows a court to order repayment in whole or in part from a person who receives support after an obligation was terminated. That section also requires the court to consider the circumstances of each party. The trial judge did exactly that, and accordingly, the appeal was dismissed. No surprise here but a reminder about making sure that formulaic clauses are complete so that parties do not need to go to the expense of having a court interpret them.

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