25 July 2012

Claims for Retroactive Child Support and Spousal Support

Speaking of the recently concluded National Family Law Program (see the post below), I was fortunate enough to be asked to present a paper at the conference reviewing the case law on retroactive child support and spousal support. Since my paper is too dull to hold any reasonable person's attention for more than twenty seconds, I'll just give you the Coles Notes version.

The two really important cases on this subject are D.B.S. v. S.R.G., a 2006 decision of the Supreme Court of Canada on retroactive child support, and Kerr v. Baranow, a 2011 decision of the court which addresses retroactive spousal support. A "retroactive" order is an order that has a start date before the date the order is made, like an order made in July for child support payments beginning in March.

The key points of the court's analysis in D.B.S. are these:
  • An obligation to pay child support exists independent of any order or agreement on child support.
  • The amount of child support is determined by the Child Support Guidelines. The Guidelines base the amount of support owing on the income of the payor
  • The payor's child support obligation is the amount payable based on the payor's income and the Guidelines, but changes as the payor's income fluctuates.
  • An order or agreement may correctly state the amount of child support payable when the order or agreement is made, but if the payor's income changes the order or agreement stop being correct.
  • When an order or agreement is no longer correct, a court can make an order requiring the payor to make up the difference between the amount of child support that was paid and the amount that should have been paid.
D.B.S. then says that four factors should be taken into account when a court is asked to make a retroactive order:
  1. the reasons for the recipient's delay in asking for an order updating the amount of child support;
  2. any misconduct on the part of the payor, such as hiding income, lying about income or pressuring the recipient not to ask for more support;
  3. any hardship suffered by the children as a result of the payor's short support payments; and,
  4. any hardship that the payor might suffer if forced to pay a retroactive child support order.
Courts should consider these factors and the facts of each case in a "holistic" manner.

When a court is prepared to make a retroactive child support order, the start date of the order should be the date the recipient let the payor know that child support needed to be updated, to a maximum of three years from the date of the recipient's application to court. However, if the payor has engaged in misconduct of some sort, then the start date can be as long ago as the date when the payor's income changed.

In Kerr, the court held that these same considerations also apply to claims for retroactive spousal support, with two modifications. First, the reasons for the recipient's delay are more important in claims for spousal support than in claims for child support. Second, the sort of misconduct that is relevant is misconduct relating to the support application itself.

After reviewing how Canada's courts of appeal have treated D.B.S. and Kerr, it seemed to me that orders and agreements for child support no longer offer blanket security against claims made in respect of the period covered by the order or agreement. Payors of spousal support are somewhat better off, subject to the propriety of their behaviour and the adequacy of their disclosure, but the period elapsing between separation and the first payment of support seems to be fair game. It also occurred to me that the issue of misconduct has become the dominant factor in deciding claims for retroactive support orders, despite the court's caution that it is only one of the four factors to take into account and that none of the factors are predominant.

At the end of the day, I concluded that the only reasonable court of action for people paying support, child support in particular, is to make voluntary disclosure of any changes in income and to update the amount of child support being paid whether the recipient asks for the change or not.

15 comments:

  1. If there's no order yet, and there is a very lengthy delay in getting one, in part because the lawyers didn't estimate their court time well, and I have put myself in debt trying to ensure the hardship to my child is minimal what kind of outcome can I expect, of course the retroactive will cause a hardship in the form of debt but what about bringing me back above water?

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  2. Hi JP!
    I really enjoy your blog. In your experience is it difficult to collect past due support? My issue is that my ex has lied in Court regarding his income two separate years (the figures are substantially off).

    Thanks!

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    1. With some people it's easy, with some people it's hard. It depends on whether the amount owing is obvious or arguable, how the payor earns his or her income, where the payor's assets are and how those assets are owned. It's usually easy enough to enrol with FMEP and let them pursue any arrears and, best of all, FMEP doesn't charge the recipient for its services.

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  3. Thank you JP!

    We are already enrolled with FMEP. The problem is that the Court accepts the income at one amount and the T4 shows a much higher amount.

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  4. My ex took off seven years ago. I just found him in a different Provence. He has never paid child support. Can I go back for the past seven years?

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    1. Read the DBS case I refer to in this post. It says that there should be three-year limit to retroactive claims. However, if the payor's conduct has been exceptionally blameworthy you might be able to back further than three years. You should speak to a family law lawyer in your neighbourhood to find out what options are available to you.

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  5. Thank you for your post, it is frustrating that we the recipients have to pay for a lawyer to make them follow the order that is in place. Can you recommend a good lawyer on Vancouver Island?
    thank you

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    1. Actually, to follow an existing order, it may be easiest just to enrol with the Family Maintenance Enforcement Program. They'll take steps to enforce the order at no cost to you.

      If you feel you need to get a lawyer, the good news is that Vancouver Island is awash in skilled lawyers. Try Bea McCutcheon, Kay Melbye or Eugene Raponi.

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  6. Something overlooked is the United Nations Declaration of the Child which was adopted by Canada in 1987 and is a statute and charter of sorts. IS your child being violated and CAN criminal charges be laid? SHOULD recipients go to international courts governing Canadian courts who fail their children?
    Canadian courts fail at allowing retroactive motions because a recalculation of support and expenses is a simple process and would remedy the redundancy and stop clogging the courts.
    Ontario does not have the assessment recalculation office set up as of yet and would save millions of dollars of unnecessary motions, contempt motions for payors who fail to disclose and the long horrific battle of administrative warfare. The paperwork alone can cause suicide to a self represented litigant.

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  7. Hello. Just wondering if you could shed some light on a matter. A friend of mine has been separated for over 2 years and lawyers are now involved, although his lawyer doesn't seem to be very helpful in his case. His ex is now attempting to go for retro child support for the first 2 years of separation, even though during that time, she lived in his home with their 3 children while he lived in his sister's basement. He paid all the major house bills (mortgage, taxes, and house insurance which was high because of two large claims she had put in), while she only paid her utilities. But she says that it does not count because it was his reponsibility to pay all that. She works and he is on disability due to back injuries and demyelating polyneuropathy (a nerve disease). Would she be entitled to the back support, even though he paid the support amount towards her living expenses? I also want to note that during those 2 years, he was not allowed to live in his house. She would not allow it and even installed an alarm to keep him out. He was only permitted to see the kids at her convenience, but then made to leave his own home. Should the two things cancel each other out? I would hate to see him lose even more money to her, since she had already stolen enough (savings accounts have been depleted by her and $25,000 unaccounted for). Now this.

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    1. Well, it seems to me that the wife may have some problems with her claim for retroactive child support if your friend was paying the major household bills, as you say, because one of the things the court will consider is whether the children suffered any hardship when support wasn't being paid. There are cases where a payor who was covering living expenses hasn't been made to pay retroactive child support. Your friend really must speak to a lawyer to get some proper legal advice, however. Retroactive claims can be complicated.

      As far as your friend's time with the kids goes, however, there's no connection between child support and time with the children support is being paid for. That's a completely separate issue.

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  8. Can a 23 year old child apply to get child support from either parent to help pay college/living costs ?

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    1. Yup. Section 149(2) of the Family Law Act says that a child may apply for child support. The trick, though, is that you still have to be a "child." Under s. 146, "child" includes children under the age of majority as well as older children who are "unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians." This definition is read as including adult children enrolled in college or university, however the dependence of the adult child often has to be proven and that can be challenging when a child has moved out and had a history of working full- or part-time and otherwise being financially independent.

      You really must speak to a family law lawyer to get some proper legal advice about your options. You can see a lawyer for free through Access Pro Bono, but if that doesn't work out you can see a lawyer for 30 minutes for $25 if you find the lawyer through the Lawyer Referral Service. You can find numbers for both groups online.

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  9. My order is temp from 2010 and we are just now doing final orders due to reluctance of disclosure . It is retroactive so will they adjust it back all the way ? There is a large differance in income and child support is $800 more a month ?and it stands to be a lot . The kids and i have gone without while payor has lead good life

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    1. A case from the Supreme Court of Canada called DBS v SRG sets some limits on how far a retroactive claim can go. In most cases, the longest period of time is three years from the date of the application. In certain circumstances, later and earlier limits may apply. You should speak to a family law lawyer to get some advice about what the limit is likely to be in your case.

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