Avoiding Retroactive Child Support Claims

Retroactive Child Support In Alberta

Avoiding Retroactive Child Support Claims In Alberta

When parents divorce, the law protects any children of the marriage with a right to child support. These payments financially help the parent providing care for those children. Retroactive child support issues exists when the payor’s payments were too high or too low and once of the parents wants to revisit the payments in court. Avoiding retroactive child support claims, not only protects the child, but keeps the parents from unnecessary stress and the financial drain of court. The family law lawyers at Kahane Law Office in both Calgary, Alberta and Edmonton, Alberta act for parents, and children in these situations.

How To Avoid Inadvertently Creating A Retroactive Child Support Issue

The Supreme Court of Canada recently opined on the issue of retroactive child support. In doing so, they provided a road map for litigants dealing with the issue of retroactive child support issues.  The Honourable Justice Martin recently laid out a principled approach to the issue of retroactive child support in the decision of Colucci v. ColucciRetroactive child support applications can be brought by both the payor (often seeking a retroactive reduction in their support paid historically) and the party receiving support (often seeking an increase in child support paid).

This is a very common issue clients find themselves dealing with, even in circumstances when they have done their best to ensure they are paying adequate support.  Retroactive child support applications often include complicated and time consuming legal issues.  Avoiding retroactive child support claims is in everyone’s best interest. In this article we outline some common questions, and answers to those questions. The hope is to help readers avoiding retroactive child support claims in future.

Given the complexity of the issue, it always prudent to obtain comprehensive legal advice based on your specific situation.  The lawyers at Kahane Law Office set up consultation appointments to review your specific situation. Without a full picture, a lawyer lacks the ability to provide meaningful legal advice or direction. Clients have many questions with respect to these claim. For example, common questions include:

Retroactive Child Support Claims Based On Longstanding Support Orders

The Federal/Alberta Child Support Guidelines require parents to exchange their income information each year. Even if you have an Order in place that sets out your child support obligation, that obligation exists.  You must provide your income information to the other parent each year upon receipt of your income tax return and notice of assessment (if you are self-employed you will be required to provide all financial disclosure pertaining to your corporate income as well).  You and the other parent may agree to deviate from the Guidelines (or continue to give effect to the Support Order you have been paying in accordance with. However, you should speak to a lawyer about protecting yourself if you and your partner have agreed to deviate from the Guidelines.  There are several options to protect yourself by papering that deal. These occur either by way of a Consent Order, or a Child Support Agreement

Providing Your Financial Disclosure If Your Spouse Failed To Provide Theirs

The best tactic for avoiding retroactive child support claims is providing your financial disclosure.  The Supreme Court of Canada has described the failure to disclose income information as the cancer of family law.  You will be obligated to provide your income information each year, even if your partner fails to do so.  In addition, the law allows parties to review child support retroactively for a period of three years.  If you failed to disclose, the court refers to such behavior as ‘blameworthy conduct’. This puts yourself at risk of a retroactive claim dating back more than three years.  You should be providing the appropriate income information to the other parent every year and reviewing your respective child support obligations.  If unsure about the amounts require for support payments, the family law lawyers at Kahane help.

Avoiding Retroactive Child Support Claims By Not Estimating Ex-partner’s Income If They Failed To Provide Their Income Information

There are steps to take to enforce their obligation to provide you their income information. This is very true if their income information is necessary to determine your respective child support payments. For example, in the case of parties who are sharing parenting of the Child/ren.  It is prudent to contact a lawyer who can discuss your option of filing a Notice to Disclose Application so that you do not put yourself at risk of a retroactive child support application at some point in the future.  Failure to take the necessary legal steps to obtain appropriate disclosure so appropriate child support is paid may be looked on poorly by a Court.  Our Courts have been clear that they do not support a ‘self-help’ approach. You may be putting yourself at risk for a retroactive child support claim, potentially years into the future.

Is It OK For Parents to Agree To Payment Amounts Outside the Guidelines?

The Federal Child Support Guidelines do allow parties to deviate from the Child Support Tables, however, our Courts retain the ultimate jurisdiction to determine if the parties’ agreement adequately provides for the Children.  It is also prudent to ensure you have properly papered your agreement with the other parent. It needs to clearly outline that both parties agree to deviate from the Guidelines.  Our lawyers frequently help clients in this regard.

Adjusting Mid-Year Payments If Income Changes

You will likely be able to apply for a reduction in your support payments based on your decrease in income provided that the decrease in income amounts to a material change and has some degree on continuity that is real and not one of choice.  You also need to provide clear communication of the change of circumstances and adequate disclosure evidencing the change in income to the other parent.  For example, these include:

  • a letter from your employer outlining your reduction in income
  • documentation of your employer outlining a layoff
  • paystubs and any other relevant information, depending on your circumstances.

Deducting My Spouse’s Portion Of Section 7 Expenses From My Base Child Support Payment Each Month

Avoiding retroactive child support claims starts with no make your own determinations. Unless a Court Order or Agreement, drafted by lawyers, contemplates setting off Section 7 reimbursement against base 3 support, keep those payments separate.  You could be inadvertently creating a retroactive child support issue.  It is extremely difficult to look back over the course of several years and determine what base 3 support versus what Section 7 Expenses were reimbursed.  You may find out several years later that your spouse is challenging some of the Section 7 Expenses you have been setting off, creating a very difficult legal issue.  Once you have determined what your base 3 child support payment is, pay that separate and apart from your Section 7 expenses.

What Happens If A Person Delays Their Claim For Retroactive Child Support?

One factor a Court will consider when deciding a claim for retroactive support is whether the claimant delayed bringing their application.  While it is a factor, delay alone will not necessarily prevent a claimant from proceeding with their retroactive claim.  Our Supreme Court of Canada stated that delay needs to be appreciated in a broader social context. For example, issues of family violence and access to justice. There may also be many reasons for delay. For example, these include:

  • “information asymmetry” regarding the payor’s income;
  • lack of financial resources of the recipient to pursue a legal remedy for retroactive child support; and
  • potential behaviour by the payor to intimidate the recipient from taking legal action.

Delay is not enough to avoid having to deal with a retroactive claim.

Legal Help Avoiding Retroactive Child Support Claims

It is imperative you are aware of your obligations regarding child support. In addition, always review your rights and obligations each and every year.  It is always a good idea to obtain comprehensive legal advice. This allows you to understand your rights and obligations to and from your spouse.  To book a consultation appointment with one of the Family Lawyers at Kahane Law Office, feel free to contact us. We are happy to help. You can reach us locally in Calgary at 403-225-8810. In Edmonton at (780) 571-8463, or email us directly here.