Surrey and Vancouver family law clients involved in BC spousal and child support cases often mistakenly believe that orders and agreements will prevent claims of retroactive child and spousal support. Promptly dealing with the correction of support is important for both paying and receiving parents. We have 4 family law offices in BC and our top rated family lawyers can help you deal with this confusing topic. Contact us.
While orders and agreements do provide a starting structure for support, they do not provide security against further monetary claims with respect to the period of time which they cover. Child support can be reviewed annually but often is not. If support is not reviewed regularly, what is the risk and certainty of a retroactive correction of support either to increase or to decrease it?
The factors considered in retroactive child and spousal support are summarized below:
- Children’s need for support and payor’s ability to pay retroactive support as per the Guidelines and a consideration of whether the children suffered from any lower payment.
- Blameworthiness of payor; does the conduct of the payor significantly contribute to retroactive support awards being made in favour of the recipient?
- Evidence showing payor’s increase in income justifying correction; any valid proof showing that the payor’s income has increased or additional imputed income being earned by the payor.
- What, if any, notice was given informing a payor of a claim for retroactive support. A recipient should not wait to raise the issue of retroactive support for months or years or worse yet until a trial. The recipient will often need to show the court that he or she has requested proof of the payer’s income over a considerable period of time or a deliberate refusal to do so based on fear or lack of confidence or funds to pursue a claim.
Not every case of retroactive support will succeed and the recent case of E.L.S. v. C.A.S., [2012] B.C.J. No. 1713, shows how the principles on awarding retroactive support including both a recipient’s delay in applying and the payor’s conduct in making a claim are equal factors in judgment.
In E.L.S, the spouses commenced cohabitation in 2002, married in 2006 and separated in 2009. There were two children of the marriage. The mother, a civil servant, sought Guideline support on a retroactive basis from the father, a police constable. She claimed that additional income should be imputed to the father with regards to rental arrangements in his residence and a failure to disclose banked over time from his work. The application for retroactive support was refused as the mother had accepted interim payments every month without objection; she did not raise a claim until trial; the children had suffered no hardship; and the court found no blameworthy conduct by the father.
The Honourable Mr. Justice P.J. Pearlman states at para. 103:
The claimant has provided no reasonable excuse for her delay in claiming retroactive child support. Ms. S, who is not hesitant to assert her rights, has not claimed that she feared a vindictive response from the respondent, or that she lacked the financial or emotional fortitude to claim retroactive spousal support at an earlier stage. I find that Ms. S’s delay of 18 months from the time she received Mr. S’s first financial statement in seeking a retroactive adjustment of child support is unreasonable. Furthermore, because Ms. S did not give notice of her claim for retroactive child support until the last day of trial, the respondent was denied the opportunity to call evidence respecting the alleged additional sources of income which Ms. S now says should be imputed to him.
The principle of a payor’s conduct with consideration of the children’s rights to support was summarized at para. 104:
In D.B.S. at para. 106, the Court characterized as blameworthy conduct anything that privileges the payor parent’s own interests over his children’s right to an appropriate amount of support. A payor parent cannot conceal increases in his income from the recipient parent in order to avoid larger child support payments. However, as the Court explained at para. 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. … 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. …
Reported cases of retroactive child support and spousal support have become a growing trend for BC family law clients. Each claim is fact-specific and determined on its own individual circumstances. Spousal support claims may receive less favourable treatment than retroactive child support claims. The conduct of a payor with regards to the needs of the children is largely balanced against a recipient’s delay in making a claim. However, the needs of the children place an onus on both parents to act in their children’s best interests so the children receive the proper support to which they are entitled. Applications must be evaluated in a holistic approach while the children’s best interests still remaining the number one priority of the court.
We tell recipients to promptly apply for correction so a large retroactive award which may not be recoverable given the payor spouse may spend it on other expenses does not accrue. Conversely, we warn paying spouses to come back to correct any support overpayment as the test to cancel arrears is that arrears should not be cancelled unless it would be “grossly unfair” not to do so.
We have 4 offices across BC located in Surrey, Vancouver, Kelowna and Fort St John BC.
