Best* Vancouver Retroactive Child Support Lawyers help family law clients understand the right of their child to proper child support that is based on their true ability to earn income. Ideally proper child support is paid right from the start but sometimes there is delay in applying for child support and/or inadequate disclosure of a parent’s true income. The Best Vancouver Retroactive Child Support Lawyers know the payor parent’s interest in certainty must be balanced with fairness to the child. The court should consider if the applicant has supplied a reasonable excuse for any delay, as well as the conduct of the payor parent, the needs and circumstances of the child and any hardship occasioned by the granting of a retroactive order.
Today’s blog by Lorne MacLean, QC discusses the rules applied to obtain proper child support from the date iut should have properly started. MacLean, a respected Canadian family lawyer leads MACLEAN LAW and he focuses on medium to high net worth financial disputes and challenging child custody cases at all levels of courts including the SCC. Meet with our top rated family lawyers in Vancouver, Surrey, Kelowna, Fort St John and Richmond BC and in Calgary Alberta.
Vancouver Retroactive Child Support Lawyers 1-877-602-9900
The recent decision of Block v Block provides a thorough summary of all the factors the courts should look at in deciding the correct amount of child support and the proper starting date for same:
[24] Given the claim for retroactive child support and s. 7 expenses I turn to the approach to be taken as explained by the Supreme Court of Canada in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. A useful summary of that Court’s approach is found in D.M.P. v. G.E.A., 2013 BCPC 117 at para. 10:
RESPONSIBILITIES MATTER
1. With parenthood comes financial responsibility: When a child is born, that child has a right of child support and that right survives the breakdown of the relationship. The level of support will vary depending on the income of the payor parent. (See para. 38.)
2. The Federal Child Support Guidelines (the “guidelines”) quantify the level of support: Under the guidelines, only two numbers are relevant: the number of children and the income of the payor parent. Except for cases of shared custody (where additional considerations apply), an increase in the payor parent’s income increases the total amount of child support owed. When a payor parent does not increase the level of child support when his or her income goes up, it is the child who loses. (See paras. 43 to 45.)
3. A parent’s child support obligation will only be enforceable once an application to court has been made. But this does not mean that a child is without a remedy if a parent does not vigilantly pursue the child’s right to support: Once parents are properly before the court, the court has jurisdiction to make retroactive orders so that if a parent does not adequately defend the rights of the child, the court can defend that right. (See paras. 56 and 60.)
WHEN ORDERS ARE MADE – Vancouver Retroactive Child Support Lawyers
4. Orders for retroactive child support may be made in three situations: (a) where there has already been a court order made — in such cases, the court order made should reflect the order which should have been made at the time. (See paras. 62, 68 and 69); (b) where there has been a previous agreement between the parties; (c) where there is no court order. In the third situation, it is difficult for the non-paying parent to show that he or she was meeting his or her obligations to the child, in the absence of special circumstances such as hardship. (See para. 80.)
5. Retroactive child support can only be ordered for a child who is a “child” as defined in the legislation at the time of the application: (See para. 89).
6. Retroactive orders may not be appropriate in certain circumstances: for example, if the child would get no discernable benefit from the award, or if a retroactive award causes hardship to the payor parent, it may not be appropriate for a court to enforce the support obligation retroactively. (See para. 95.)
RETROACTIVE ORDERS ARE NOT EXCEPTIONAL-Best Vancouver Retroactive Child Support Lawyers
7. Retroactive awards should not be considered as exceptional: retroactive awards are often justified by the fact that the payor parent chose to bring hardship upon him or herself by not meeting the support obligation due to the child. (See para. 97.)
8. If the payor parent is in arrears under the existing order, the factors against making retroactive orders are less likely to apply. (See para. 98.)
DELAY NOT FATAL TO AWARD – Vancouver Retroactive Child Support Lawyers
9. Delay in making an application for retroactive child support is a consideration, but delay does not automatically rule out a retroactive order: Delay may be excused in the following cases: (a) if the applicant harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family; (b) if the applicant lacked the financial ability to bring the application; (c) if the applicant experienced emotional impediments to bringing the application; (d) if the applicant received inadequate legal advice. (See para. 101.)
10. Delay in applying for retroactive child support is less likely to be excused if the applicant knew that higher child support was warranted, but chose not to apply for it arbitrarily: (See para. 101).
11. There are two main factors against awarding retroactive child support: (a) the payor parent’s interest in certainty — if the payor parent informs the applicant of income increases in a timely manner and is not otherwise blameworthy, a retroactive order is less likely (see para. 102); (b) the recipient parent should not be encouraged to delay seeking appropriate support for the child (see para. 103).
12. Child support is the right of the child and cannot be waived by the recipient parent: therefore delay does not eliminate the payor parent’s obligation; it is merely a factor for the court to consider in exercising its discretion to make a retroactive order (see para. 104).
BEHAVIOUR SCRUTINIZED – Vancouver Retroactive Child Support Lawyers
13. Each parent’s behaviour should be considered in balancing the competing factors for and against retroactive orders: courts should take an expansive view of what is blameworthy conduct, which is defined as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate level of support (see para. 106).
14. A payor parent who does not increase support automatically is not necessarily guilty of blameworthy conduct: the gap between what a parent should be paying and what that parent actually is paying, in a good indicator of whether or not blameworthy conduct exists, with a small gap suggesting no blameworthy conduct and a large gap suggesting blameworthy conduct (see para. 108).
CHILD CIRCUMSTANCES AND HARDSHIP – Vancouver Retroactive Child Support Lawyers
15. The present circumstances of the child must be considered in the exercise of the discretion to award retroactive child support: a child enjoying a high standard of living will benefit less from a retroactive award than a child who is in need (see paras. 111 and 113).
16. A court must also consider any hardship that will result from a retroactive award in exercising its discretion: for example, if a retroactive award adversely affects a payor parent’s other children, this must be considered. Hardship of a payor parent is less of a concern if it results from his or her blameworthy conduct. (See paras. 115-116.)
COMMENCEMENT DATE – Vancouver Retroactive Child Support Lawyers
17. When should a retroactive order commence?: There are four options: (a) the date when the application was made; (b) the date when formal notice was given to the payor parent; (c) the date when effective notice was given to the payor parent; or (d) the date when the amount of child support should have increased. As a general rule, the proper date is the date of effective notice. (See para. 118). The first two options should not be selected because parents should not be penalized for using an application to court as a last resort. (See para. 120.)
18. The “effective date” is the date when it was indicated to the payor parent that child support needs to be recalculated: (see para. 121).
19. The date when child support should have increased is a fairer option when the payor parent has engaged in blameworthy conduct: once a payor parent engages in blameworthy conduct, he or she can no longer assume that the child’s support entitlement is being met (see para. 124).
BLAMEWORTHY CONDUCT EXAMPLES – Vancouver Retroactive Child Support Lawyers
20. Examples of blameworthy conduct: (a) where the payor parent intimidates the recipient parent; (b) where the payor lies to the recipient; (c) where the payor withholds information; (d) where the payor fails to disclose an increase in income from which one would expect to alter the child support payable (see para. 124).
21. Blameworthy conduct will move the presumptive date of retroactivity to the time when circumstances changed materially: (see para. 124).
START DATE RULES – Vancouver Retroactive Child Support Lawyers
22. In the majority of circumstances, a retroactive order will be limited to three years, provided that the payor parent has acted responsibly and has not engaged in any blameworthy conduct: but if the payor parent has not disclosed any changes in circumstances such as increased in income, the presumptive date of retroactivity should be moved back to the date when circumstances changed materially (see para. 125).
23. In fixing the amount of retroactive child support, the guidelines should generally be followed: if the date of retroactivity is not prior to May 1, 1997 (when the guidelines came into force) the guidelines should be followed. However courts ordering retroactive support pursuant to provincial statutes have greater flexibility in tailoring the award to fit the circumstances (see para. 127). The presence of undue hardship can yield a lesser award (see para 128). A court can also adjust the effective date if there has been unreasonable delay in bringing an application after effective notice was given (see para. 130).
24. The Supreme Court of Canada suggests that a general discretion exists concerning the amount of a retroactive award: at para. 130 the court states “unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case.”
SUMMARY – Vancouver Retroactive Child Support Lawyers
25. Summary of factors for a court to consider in applications for retroactive child support: in considering these applications, a court should look at all of the relevant circumstances. The payor parent’s interest in certainty must be balanced with fairness to the child. The court should consider if the applicant has supplied a reasonable excuse for any delay, as well as the conduct of the payor parent, the needs and circumstances of the child and any hardship occasioned by the granting of a retroactive order (see para. 133).
The rules are complex and how the evidence is presented can mean swings in awards of tens of thousand if not hundreds of thousands of dollars. Don’t gamble with your child’s financial security call one of the Vancouver Retroactive Child Support Lawyers today toll free across BC at 1-877-602-9900.
