Vancouver child support and BC child maintenance is a fundamental component of a robust Canadian society. With 50% of relationships with children ending in separation: properly paid, and promptly corrected Vancouver child is critical. If children are not properly supported by both of their parents working to their capacity, both through parenting time and through gainful employment, then Canadian society as a whole is weakened. Our highly rated Vancouver Child Support lawyers set the record for single child support at $21,000 per month and lawyers regularly use our wins as guidance in settling or litigating Vancouver child support disputes. We also assist payors who need to properly correct downward support when their income has declined or they have lost their job. Delay only makes things worse so contact us right away when child support and maintenance needs to be corrected.
Our award winning family lawyers handle medium to high net worth BC, Alberta and Toronto child support cases. For some general information on child support take a look at this.
Vancouver Child Support and BC Child Maintenance 1 877 602 9900
In previous blogs, we have explained the steps needed to ensure your child receives proper Vancouver child support and BC Child Maintenance. But because Vancouver child support and BC child maintenance is supposed to be adjusted annually, many child support disputes involve delayed correction upward or downward of the original Vancouver child support and BC Child Maintenance amount. The test for varying Vancouver child support and BC Child Maintenance is whether there has been a material change, which for child support involves a change in one or both parties incomes. Examples of a change in circumstances include an increase or decrease in a parent’s income, a change in the parenting arrangements, a change in special expenses, or a child turns 19 (the age of majority in BC). You and the other parent should talk about any changes in your incomes at least once a year.
Further, parties can be asked to provide proof of income annually to adjust child support. In cases where one parent has primary residence the income changes of the payor is key, but in shared parenting or split parenting time cases BOTH parties’ incomes matter. Fraser MacLean, one of our busiest Vancouver family lawyers, explains the significance of annual corrections to Vancouver Child Support and BC Child Maintenance and what happens when there is a delay.
Please Explain The Rules Simply! 1 877 602 9900
Here is a quick summary in plain language:
[39] In Colucci, which was decided after the order under appeal was pronounced, Justice Martin, writing this time for a unanimous Court, summarized the approach to be followed to applications for retroactive child support pursuant to s. 17 of the Divorce Act. Without including the entire summary in these reasons, the following should be emphasized in light of the parties’ submissions on appeal:
a) Where a recipient parent seeks to increase child support retroactively, they have the onus to meet the threshold of establishing a past material change in circumstances. Once this threshold is met, there is a presumption in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary;
b) The court retains the discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. This exercise of discretion continues to be guided by the D.B.S. factors as described in Michel;
c) Once a court has determined that support should be retroactively increased to a particular date, the increase must be quantified in accordance with the Guidelines;
d) In order to recalculate support according to the Guidelines accurately, reliable and complete income information is required; the failure to disclose accurate income information may constitute blameworthy conduct, as Martin J. noted in Michel at paras. 50 and 116–117; and
e) The subjective intentions of the payor are rarely relevant; at para. 101.
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The new case of Gauthier v Gauthier, from our BC Court of Appeal, looked at a retroactive correction of Vancouver child support and BC Child Maintenance in a shared parenting context and considered how the absence of blameworthy conduct impacted how far back the Court should correct the underpayment of child support. The parties shared parenting time and had signed a separation agreement which contained terms for child support. The incomes of the parties changed. The judge noted neither party was guilty of any blameworthy conduct that privileged the parent over the needs of their children and awarded a retroactive correction limited to 3 years.
The mother appealed on the basis that the judge erred by failing to find that the respondent engaged in blameworthy conduct justifying a departure ( she wanted to get more retroactive support over a longer period) from the presumed three-year period for a retroactive award. The Court of Appeal dismissed her claims.
Presumptive 3 Year Rule For Retroactive
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One of the key issues courts address in correcting child support retroactively is the presence or absence of blameworthy conduct. The BC Court of Appeal summarized the law as follows:
[34] In light of the parties’ submissions regarding the legal test for blameworthy conduct and whether it is subjective, objective, or a combination of the two, it is necessary to review the key statements of the Court from D.B.S., Michel and Colucci.
[35] The starting point is D.B.S. where Justice Bastarache, for the majority, stated:
[106] Courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of a retroactive award. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support…
[108] On the other hand, a payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour. Whether a payor parent is engaging in blameworthy conduct is a subjective question. But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct. In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were being met. Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order. However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay.
[Emphasis added.]
[36] Concerning the presumptive three‑year rule, the majority in D.B.S. stated:
[124] The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child’s support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.
[125] The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.
No Blameworthy Conduct 1 877 602 9900
In Gauthier the Court of Appeal agreed with the Trial Judge that there was no blameworthy conduct and the shared custody arrangement made a difference:
[48] It also bears emphasizing that, unlike Michel and Colucci, this case involved shared parenting, where both parents had the obligation to make ongoing financial disclosure. The financial asymmetry which arises when there is only one payor spouse, not two, should not arise.
[49] The judge was careful to note the many distinguishing features of Michel, including, at para. 90:
a) the case did not involve a shared parenting arrangement, and the child lived exclusively with the payee mother;
b) the mother was financially strapped and had to rely on social assistance to survive;
c) the father not only knew about the child’s hardships, but made disparaging remarks about her standard of living rather than increasing his child support payments;
d) the consent order provided for child support was based on the father’s misrepresentation that his income that year was $39,832, when, to his knowledge, it was $45,580;
e) the father repeatedly misrepresented his income to the respondent in each year but one since the consent order was made until his child support obligations terminated by court order effective April 2012 when the child was 20 years old;
f) the child was unable to attend post-secondary schooling as a result of the father woefully underpaying child support; and
g) the case involved an application under s. 152 of the FLA, which provides an avenue for the court to retroactively change a child support order only after considering:
i. a change in circumstances since the order was made;
ii. evidence of a substantial nature that was not previously available becoming available; and
iii. evidence of a lack of financial disclosure after the order was made.
[50] In comparison, the judge in this case found there was no blameworthy conduct by either party given that:
a) they were engaged in a 50/50 shared parenting regime and were both obliged to disclose their respective earnings. Neither did due to “an honest, but mistaken, belief on the part of both parties” (at para. 98);
b) both parties had reasonable expectations that the child support issue had been settled by the Separation Agreement and that they could go on with their separate lives (at para. 100); and
c) this was not a case where either party actively hid or misrepresented their respective incomes from the other. Nor was this a case where either party consciously chose to ignore the obligations owed to the children in a blameworthy manner. The respondent reasonably believed that he was meeting his support obligations by following the terms of the Separation Agreement, which he presumed to be valid despite the annual increase in his income, and by supporting the children in other ways including s. 7 special and extraordinary expenses. Each party respected the Separation Agreement and lived by its terms. They were not actively withholding information: at para. 101.
Vancouver Child Support and BC Child Maintenance 1 877 602 9900
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