The Best Child Support Lawyers Tips help clients win BC child support for themselves and their children. In today’s blog, our founder Lorne MacLean, QC, who set the highest award for spousal and child support in BC of $116,000 a month plus hundreds of thousands in retroactive spousal and child, support explains a critical new BC Appeal Court decision. Our top rated family lawyers will assess and help you resolve child support fairly. Calculating the right amount of child support is tricky and using online calculators is almost always a bad idea because someone’s real income may be far different than you think. If you have a Vancouver child support question or live anywhere in BC, Alberta and in Toronto our Vancouver child support and Canadian child support lawyers are happy to assist you in calculating and settling a fair Vancouver child support or BC and Alberta or Toronto child support award.
Best Child Support Lawyers Tips # 1
The single most important Best Child Support Lawyers Tips we can give is to NOT DELAY claiming child support. If you do:
- Your spouse may have the interest free use of the child support that should have been paid to invest and make gains on;
- you may not receive proper child support for a proper time frame meaning your whole family unit suffers
- if you wait too long you may deprive your child of thousands of dollars of child support and get nothing.
A recent Appeal Court decision warns that if you delay too long you may miss the absolute cut off date to claim child support and lesser delays can cost you years of lost child support. Some judges may only go back three years even if underpayment lasted far longer so the onus is on the parent’s to take prompt action to correct child support. Your children deserve no less.
In Deng v. Zhang handed down in August 2022 the Appeal Court decided that the trial judge erred in awarding retroactive child support from 2004 to 2017, absent a consideration of whether the parties’ daughter was a “child of the marriage” at the time the application for support was brought, and also erred in failing to consider the presumptive three-year limit on a retroactive order. The Court held it had no jurisdiction to award past child support if the child was no longer a dependent child when the claim is first made.
Best Child Support Lawyers Tips # 2
The second Best Child Support Lawyers Tips is that child support does not automatically end when a child turns 19. In British Columbia, a person reaches the age of majority on becoming 19 years of age: Age of Majority Act, R.S.B.C. 1996, c. 7. However, under s. 146 of the FLA, a person over the age of 19 who is 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, remains a child for the purpose of receiving support.
The Appeal Court noted:
[52] In Nordeen v. Nordeen, 2013 BCCA 178, this Court discussed the circumstances in which a pursuit of education is a valid reason for continued dependence:
[16] In determining whether pursuit of education is a valid reason for continued dependence, a court must consider two questions. The first is whether, considering all of the child’s circumstances, the child’s educational pursuits are reasonable. If they are, the court must also consider whether it is appropriate that the pursuits be financed by the parents. These questions can be complex and value-laden. In Farden v. Farden, (1993), 48 R.F.L. (3d) 60 at 64-5, Master Joyce (as he then was) set out a list of eight factors that may assist a court in making the determinations:
(1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;
(2) whether or not the child has applied for or is eligible for student loans or other financial assistance;
(3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
(4) the ability of the child to contribute to his own support through part-time employment;
(5) the age of the child;
(6) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.
[17] This Court has found the Farden factors to be useful indicators in deciding whether child support should continue to be paid in respect of a child over the age of majority who is attending a post-secondary institution (see, for example, Darlington v. Darlington (1997), 32 R.F.L. (4th) 40; W.P.N. v. B.J.N., 2005 BCCA 7 and De Beck v. De Beck, 2012 BCCA 465). It must be emphasized, however, that the Farden factors are neither a checklist nor a set of statutorily-mandated criteria. Rather, they are considerations for the court in assessing whether the child’s situation is consistent with the definition of “child of the marriage” in the Divorce Act.
[53] The Farden factors are equally helpful in determining whether an adult child remains a “child” within the meaning of s. 146 of the FLA.
Best child Support lawyers tips # 3 Is Child Still A Child For A Child Support Arrears Claim?
To claim child support, the child must be a child under the Divorce Act or Family Law Act. If you wait until the child is an adult to start a clim for child support, you won’t be able to claim past arrears.This can result in a terrible injustice for your child. Here is what the BC Court of Appeal said:
[83]If, having considered the factors above, a judge decided that an adult child remained a “child” for the purposes of s. 146 of the FLA, they would next have to determine whether it was appropriate, in the circumstances, to award retroactive child support.
[84]The starting point for a retroactive award of child support is D.B.S. v. S.R.G. In D.B.S., the Court confirmed that the usual rule is that a retroactive award of child support will be made for a period of no more than three years before formal notice was given to the payor parent: at para. 123. However, there are exceptions to this presumptive rule:
[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.
[85]The four factors arising from D.B.S. which are now applicable to determining entitlement to retroactive child support beyond three years were summarized in Colucci v. Colucci,2021 SCC 24 at para. 38 as being:
a)the recipient’s delay in seeking retroactive support;
b)the payor’s conduct;
c)the child’s circumstances; and
d)the hardship entailed by a retroactive award.
These factors must be viewed holistically; none of them are individually determinative: Colucci at para. 96; D.B.S. at para. 99.
[66] Does the Supreme Court’s decision in Michel alter this Court’s jurisdiction to make a retroactive support order in the circumstances of this application? So far as N. is concerned, in my view, it does not………To that extent, Michel overrules Dring. But Michel does not overrule the holding in Dring that the Court has no jurisdiction to entertain an original application for child support under the FLA where the would-be beneficiary is no longer a “child”.
[67] Bound as I am by both Michel and the aspect of Dring that has not been overturned, I find that this Court has no jurisdiction to grant an order for retroactive support for N. …
[87]I agree with Justice Lyster’s analysis of this issue.
Takeaway – Don’t Delay Claims For Child Support
In the end result the trial judgment was set aside and the case was sent back to decide whether the child was still entitled and on the issue of child support and if so for how far back any retroactive support should go. Contact us now!
