Best Retroactive Child Support Tips will help ensure your child is supported properly after separation. On May 16, 2019, the Supreme Court of Canada granted leave to hear an appeal of the recent BC Family Law retroactive child support decision Graydon v Michel 2018 BCCA 449. Graydon is about retroactive child support, the process of obtaining past child support your child was entitled to but their parent did not seek to obtain. A person can be entitled to retroactive support either because they weren’t receiving any child support in the past, or just because they weren’t receiving enough child support. However, like most things in life if you delay in taking action you often suffer negative consequences. Our experienced family lawyers can help you but you need to meet with us promptly to ensure your child has a proper post separation lifestyle so they can thrive. Meet with us now.
Best Retroactive Child Support Tips – Don’t Delay
In Graydon, the mother sought retroactive child support from the father on the basis the father’s income increased since the original order but the support had not been increased by him. By the time the application was brought, the subject of the support order was no longer a child within the meaning of the Family Law Act. The Appeal Court dismissed the mother’s appeal finding the trial judge did not have the jurisdiction to make the variation, as the subject of the child support order was no longer a child at the time the application to vary was made. In the final result, the father received a windfall in not paying child support based on the increased income he earned and unfortunately the child received far less than they were entitled to.
Best Retroactive Child Support Tips
Jaye Rutledge of our Northern BC offices explains that there are limits on how much retroactive child support you can obtain. For example, in most circumstances, you can usually only at most three years of retroactive child support UNLESS BLAMEWORTHY CONDUCT IS PROVEN. In determining how much retroactive child support a person is entitled to, the court will factor in things like whether there has been an unreasonable delay in seeking child support, the past and present circumstances of the child, if the failure to pay the appropriate amount of child support was the fault of the payor, and whether paying the retroactive child support would be a significant financial hardship for the payor.
Best Practices to ensure your child receives a proper post separation standard of living include doing the following:
- asking for the inclusion of a requirement for annual disclosure pursuant to s. 25 of Guidelines in all agreements, minutes of settlement and court orders and getting business records for all self-employed persons since their personal tax returns usually seriously understate their true income;
- asking for the inclusion of a requirement for annual adjustments of child support in accordance with income in all agreements, minutes of settlement, and consent orders and court orders;
- make formal written demands for disclosure on a regular (not more than once a year) basis, and to record these demands in writing.
Advise clients to make note of dates of any informal requests;
- Do not negotiate for too long.
- Avoid delays in seeking changes to child support but if you have delayed be prepared to adduce proper evidence regarding the reasons for any delay in seeking additional support, which can include family violence, non-disclosure by the payor or a lack of resources to proceed promptly.
- make sure to apply for changes to child support well before your child ceases to qualify as a child of the marriage;
- Hire a senior family lawyer with a track record of record-breaking retroactive support awards and substantial spousal and child support awards.
Is the BC Family Law Act Test Same As Divorce Act For Retro Child Support?
In Graydon, the question the court had to consider was whether a woman was entitled to retroactive child support even though the person the child support was for had since become an adult. Generally speaking, both provincial and federal family law legislation only gives courts the ability to make child support orders when the person the child support is for is still a child, so if you don’t seek child support at all until your child becomes an adult then you will likely be out of luck. However, in Graydon, the issue was that the mother had been receiving child support but it was inadequate given the high income of the payor. Because of the way the BC Family Law Act is written, before the Graydon decision, it was not clear if the woman would be entitled to receive retroactive support or if the rule from the DBS case about not being able to seek retroactive child support after the child becomes an adult should continue to apply.
Based on a technical interpretation of the law, three of the five judges in Graydon ultimately determined that the woman wasn’t entitled to adjust the child support upwards because the person the child support order was about was no longer a child. At the present time, this is the state of the law but the Supreme Court of Canada may decide to overrule the BC Court of Appeal when it hears the case. One advantage of hiring a dedicated family lawyer is that they will keep abreast of all the latest court decisions and ensure that your rights are being protected to the fullest extent of the law.
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The best way to avoid dealing with a retroactive support claim is to obtain child support as soon as you can. If you haven’t obtained an agreement or court order about child support, then seeking out the advice of a qualified family lawyer can save headaches down the line. We hope these Best Retroactive Child Support Tips will help you ensure your child has the best post separation lifestyle. We think your child deserves it.