Winning Retroactive Child Support Strategies come from award-winning family lawyers. Children deserve a post-separation lifestyle that takes into account increases and decreases in the income of their parents. The phrase when you “snooze you lose” applies to retroactive child and spousal support claims. Do not dither or procrastinate in hiring a top family lawyer. A new blockbuster case on Winning Retroactive Child Support Strategies was just released by Canada’s highest court on a BC case which impacts all Candian family law clients. MacLean Law is Canada’s national family law firm. We have offices across BC, in Calgary, and now in Toronto Ontario. Our firm has obtained multiple record million dollar high net worth retroactive spousal and child support awards both on an interim basis and at trial.
Covid-19 has meant many people have lost jobs or suffered reduced incomes and delaying in correcting downward child support is as critical in these difficult times as ensuring payors who have increased incomes pay more for their children.
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In today’s blog, rising star associate Karsten Erzinger explains the new rules for retroactive support which got rid of an important time limit compared to the Divorce Act.
A common area of dispute in family law matters is the issue of retroactive child support. Child support is an issue in which the court maintain parens patriae jurisdiction over, which allowed the courts to intervene in matters related to children. The result of this means that agreements or orders for child support are not final, and the support obligation of a payor parent can fluctuate. In instances where a payor parent has seen an increase in income over time without making adjustments to his/her child support obligation, arrears for child support can accrue. This can lead the recipient parent to have a claim for entitlement to retroactive child support. So how do you ensure your children do not suffer financially? Having lawyers who have a track record of success in Winning Retroactive Child Support Strategies is key.
The recent decision by the Supreme Court of Canada’s decision of Michel v Graydon (“Michel”) deals with the issue of retroactive child support, and the time frame for applications dealing with asking for relief.
The plain language extract from the SCC says:
The trial judge said Mr. Graydon hid his real income, and this hurt AG. He was to blame for the situation. The trial judge ordered Mr. Graydon to pay $23,000 in back child support, split between Ms. Michel and AG. But the appeal judges agreed with Mr. Graydon that it was too late to order back child support.
All the judges at the Supreme Court of Canada said Mr. Graydon had to pay. They said that courts could change past child support orders under the Family Law Act. They could do this even if the child was now grown up.
Child support is a right that belongs to the child. The parents can’t negotiate it away. It should give the child the same standard of living they had when their parents were together. All the judges agreed that back payments are fair. Parents are always responsible for paying according to their income. Back payment orders just hold them to that.
All the judges said courts need to consider the entire situation in deciding whether to make a parent pay retroactive child support. This includes why a parent waited to ask for the support, the behaviour of the parent who was supposed to pay, the child’s situation, and whether it would cause hardship. The majority said the reason Ms. Michel waited to ask for back payments was that she had been badly hurt and the government took over her right to support. Mr. Graydon knew his income was higher than he was saying, so it wouldn’t have been a surprise to him that he had to pay more. He also knew how bad AG’s living situation was because of lack of money, and instead of helping her, made hurtful comments about it. He could afford to pay it now. All of this meant that he had to pay.
All the judges agreed that preventing retroactive child support hurt women most. They said that support should be limited only where the law clearly says so. They said that although an older version of the law might have prevented child support for the past, the current one didn’t. In any case, it would be wrong to encourage people to avoid paying in case the other parent might wait too long to ask for it. People shouldn’t be able to profit from acting badly.
Traditionally, the law on this issue had been governed by the Supreme Court of Canada decision of DBS v SRG (“DBS”). That decision was commonly interpreted to state that individuals seeking arrears for retroactive child support had to apply for retroactive support while the child in question was still a “child of the marriage”. If relief was sought after the child was no longer a “child of the marriage”, meaning they were an independent adult, the court was not able to award retroactive support. Obviously, this overly technical approach favoured wealthy payors who “hoarded” their money at their children’s expense. Our top-rated family lawyers that have been named as top 25 Canadian lawyers warn that taking prompt action is key to making sure your children do not suffer financially.
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The difference between DBS and Michel lies in the facts and the sections of the legislation being dealt with. The decision of DBS dealt with the interpretation of the Divorce Act, specifically, S. 15.1. In DBS, a parent applied for a retroactive order of child support, and the court ultimately held that such an application could only occur so long as the child in question remained a “child of the marriage”.
Michel dealt with BC provincial legislation, the Family Law Act, and specifically was an application to change an existing order such that the amount of child support owed was more than what was originally paid. In other words, there was an existing order for child support, and the recipient parent applied to have it retroactively changed to increase the ordered amount of child support, due to the payor’s income being greater than what was considered in the original order.
In Michel, the Supreme Court notes that the prior decision of DBS did not address or consider the issue of retroactive variation orders, nor did it state that retroactive child support variations can only occur while a child is a “child of the marriage”. Provinces are free to legislate in a manner that departs from what Parliament passed in the Divorce Act. Ultimately the Supreme Court held that the trial judge was correct to determine that s. 152 of the Family Law Act provided him with the foundation to make an order for retroactive child support. S. 152 of the Family Law Act states that:
Changing, suspending or terminating orders respecting child support
152 (1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.
(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:
(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;
(b) evidence of a substantial nature that was not available during the previous hearing has become available;
(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.
The decision of DBS dealt with the interpretation of the Divorce Act, while Michel dealt with BC provincial legislation, the Family Law Act. The Supreme Court ultimately held that the language of the Family Law Act does not limit applications for retroactive child support to when the child is still a “child of the marriage”.
This case has important implications for situations where there is an agreement or order for child support in place. In particular, this decision highlights the importance of annual exchanges of financial disclosure following tax filings and updating child support amounts as need be.
So What Can You Do To Ensure Your Children Do Not Lose Out Financially? 1 877 602 9900
- obtain annual disclosure according to s. 25 of Guidelines in all agreements, in your minutes of settlement and court orders and for self-employed persons obtain their full financial records and business records as tax returns do not reflect their real income;
- require yearly adjustments of child support based on new income in separation agreements, settlements, and any court orders;
- demand annual disclosure of income including personal, business and capital gains and investment income in writing and record these requests and responses;
- Don’t procrastinate on negotiations;
- Avoid delays on seeking increases or reductions of child support and if you have 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;
- Ensure you apply under both provincial and Divorce Act legislation if children have aged out over the age of majority;
- Hire a senior family lawyer like one of our award-winning MacLean law family lawyers who have an enviable history of record-breaking retroactive support awards and substantial spousal and child support awards.
If you need to vary child support upward or downward do not delay in getting the child support amount corrected fairly so you or your children do not suffer.
Call our top-rated Candian family lawyers toll free at 1 877 602 9900 to obtain Winning Retroactive Child Support Strategies today.
