Calgary Child Support Lawyers

Calgary Child Support Lawyers 403-444-5503

Calgary Child Support Lawyers help their clients obtain and maintain proper child support for the children of the relationship after the parties separate. Calgary Child Support Lawyers know there are occasions where inappropriate amounts of child support are paid that result in unfair overpayments and underpayments. Automatic annual disclosure clauses help Calgary Child Support Lawyers protect the children of the relationship’s financial security but being vigilant on post separtion income changes pays off for clients.

Calgary Family lawyer and founder of MacLean Law, Lorne N MacLean, QC

Calgary Child Support Lawyers at MacLean Law can be reached at 403-444-5033 at our new offices in the West Tower of Banker’s Hall.

Calgary Child Support Lawyers

What happens When A Parent’s Income Changes?

Calgary Child Support Lawyers advise clients that prompt correction up or down of child support is the best approach. Applying for a retroactive correction means your child has not received the proper amount of support.

Many times the support is too low and a child has suffered. Sometimes there has been an overpayment due to financial reverses, layoffs or firings of a spouse.

When someone has overpaid, delay often works against them achieving justice and many times a worker who has been laid off is in shock and does not take action to correct the situation. Other times our Calgary Child Support Lawyers face cases where spouses have not honestly disclosed their new increased incomes.

Alberta Court Of Appeal Takes No Nonsense Approach On Proper Child Support

In the case of Pinter v Pinter a father complained the correct corrected child support instead of sending the parties to the Support Recalculation Program and also complained the judge made a retroactive child support order. The Court of Appeal rejected the Appeal applauded the judge’s actions and stated:

[19]           Turning to the first argument on appeal, it is trite law that children have a right to support from their parents that is commensurate with their parents’ income: DBS v SRG; LJW v TAR; Henry v Henry; Hiemstra v Hiemstra, 2006 SCC 37 (CanLII) at para 54, [2006] 2 SCR 231 [DBS]. That right, and a parent’s corresponding obligation, exists independently of any court order: DBS at para 68. The evidence before the chambers judge was that Mr. Pinter had not paid the amounts that he was obligated to pay for the support of his children, as determined by the Federal Child Support Guidelines. We find that, had evidence of Mr. Pinter’s actual income been available to Clackson J., the amounts directed to be paid for child support would have properly reflected Mr. Pinter’s actual income, and his commensurate child support obligation. Moreover, an increase in income is a material change in circumstance:DBS at para 66; Federal Child Support Guidelines, s 14(a). Courts are not bound by attempts to “contract out” of child support obligations. Both s 17(4) of the Divorce Act and s 14(a) of the Guidelines apply; there is no doubt that the judge was possessed of the jurisdiction to retroactively vary child support.

[20]           Although various factors of fairness are at play when a Court considers granting a retroactive child support award (see DBS at paras 94-116), Mr. Pinter did not suggest that Goss J.’s award of retroactive child support was either unfair, or incorrectly calculated.

[21]           A child’s entitlement to child support fluctuates with a parent’s income, which led Alberta through its legislators to create the Child Support Recalculation Program. The program was conceived as an efficient, accessible, inexpensive alternative to court proceedings for families with children requiring ongoing child support recalculations (Alberta, Legislative Assembly, Hansard, 27th Leg, 1st Sess, No 27e (28 May 2008) at 1049 (Robin Campbell)). The program annually recalculates a parent’s child support using the applicable guideline amounts from the parent’s most recent income information: Family Law Act, SA 2003, c F-4.5, s 55.11.

[22]           The program has limitations and it has been recognized that it is not a suitable non-court alternative for all parties: DPH v CAH, 2015 ABQB 699(CanLII) at paras 7-11; JT v TT, 2015 ABQB 648 (CanLII) at para 17; Gonek v Gonek, 2011 ABQB 166 (CanLII) at paras 29-30. It follows that a court’s jurisdiction to recalculate a child support order under s 17 of the Divorce Act cannot be ousted by the program. Simply put, the Court must do whatever the program cannot: see, for example Child Support Recalculation Program Regulation, Alta Reg 287/2009, s 16.

[25]           It would be very tempting for this Court to take up the invitation to ease the considerable daily burden cast upon the Court of Queen’s Bench in matters respecting child support, by simply decreeing that once there is an order or direction to enrol in the program, it will do no good to come before the Court of Queen’s Bench seeking relief concerning child support calculations. Alas, the ability of alternative programs – such as the recalculation program – to permit total diversion of such matters away from Queen’s Bench to cheap and effective non-court entities, has not yet been perfected. That ongoing, very difficult task must be left to the Legislature.

[26]           One of the limits of the recalculation program is that it cannot perform retroactive recalculations: DPH v CAH at para 9. Nor can the program award interim spousal support, or determine whether an expense is a proper s 7 expense, or whether post-secondary expenses are properly proportionately shared, all of which forms of relief were sought by Ms. McMillen in this case.

[27]           In the absence of full settlement of these other non-child support issues, the court proceedings were inevitable, as was the attendant expense. Given the other matters at issue and before the Court, the expenses relating to the child support recalculations were already a sunk cost.

[28]           Further, had the chambers judge declined to recalculate child support, it would have been to the detriment of the children who are entitled to proper child support.

[29]           Far from criticizing the chambers judge, we commend her for being practical and diligent, and for furthering the best interests of the children by making decisions within her jurisdiction about the amount of their entitlements to child support.

[30]           That is not to say that there will not be cases where a judge should discourage family law litigants from avoiding cost-efficient means of dispute resolution, or where declining jurisdiction would be met with appellate approval. An easy example may be a situation where the only matter between the parties is the annual recalculation. To instead expect a Court to do those recalculations would not only needlessly waste the resources of the parties, but would squander the finite resources of the courts and deprive other deserving litigants of timely judicial resolutions of their important legal matters.

[31]           But, this is not that case. Mr. Pinter was ordered by the chambers judge to pay precisely what he is obliged to pay under the Federal Child Support Guidelines. In the circumstances of this case, we find no reversible error in the chambers judge having so ordered.