Better Late Than Never - Retroactive Child Support
By Amanda Marsden, Partner, Senior Family & Estate Planning Lawyer, Calgary
The obligation to pay child support after separation and divorce is mandated by both Federal and Provincial legislation in Alberta. This obligation is something that most separated or divorced parents are well aware of, but sometimes parents neglect to pay the necessary support for their children, or they simply pay less support than they should be. This can be the start of a family law case for retroactive child support.
When the parent who is supposed to pay child support does not do so, or pays less than what they are supposed to pay, the court application should be made as soon as possible. However, there are various reasons why the parent receiving child support may put off going to family court to enforce child support. In some cases, the recipient of child support knows they are not receiving the correct amount of child support, but feels intimidated by the court process and delays bringing an application. In other cases, they may not have any knowledge that the parent who is paying child support should be paying more because of an increase in their income.
Failure to pay the required child support after divorce and separation can leave the children with a reduced standard of living for months or even years. In family law, the courts have found that child support is the right of the children and they are entitled to child support which is based on formulas linked to the incomes of their parents. Therefore, higher incomes lead to higher child support payments.
The failure to pay the appropriate amount of child support can leave the payor parent with a significant debt owing. The family law courts are generally inclined to provide children with the appropriate amount of child support even retroactively. Therefore, parents who pay child support should be aware that child support must be increased if their income increases or they may be liable for paying the difference between what they paid and what they should have paid.
The leading case dealing with retroactive child support is the Supreme Court of Canada case DBS v. SRG 2006 SCC 37. This case sets out a framework for deciding cases involving retroactive child support. The Court determined that the obligation to ensure proper child support is paid falls both on the payor and receiving parent. The payor parent has an obligation to disclose their income each year and increase child support in accordance with an increase in income. The recipient parent has an obligation to pursue the child support which the children are entitled to.
How far back can a retroactive child support order go?
The Court in DBS used the date of the “Effective Notice” to help set limits on a retroactive award. Effective notice is when the recipient parent informed the payor parent that he/she intended to seek child support. This does not have to be an application in family court, it can simply be a communication between the parents. The Supreme Court of Canada decided that in most family law cases courts can look back three years prior to the date of effective notice. However, in rare cases of blameworthy conduct or intimidation by the parent who is supposed to be paying child support, the court may order retroactive child support that goes back further than three years.
How much money will the retroactive award be?
The family Law court will determine the amount to be paid by using the Federal Child Support Guidelines and the payor’s income to determine the amount of underpayment. Typically, the full amount of underpayment (including section 7 support) will be included in the retroactive award. Given that a retroactive child support award can be quite large, the court will often order a payment schedule to deal with the child support arrears. However, it is important to remember that the payments made towards retroactive child support will be in addition to the regular monthly payment of child support.
Therefore, it is much easier and better to pay the correct amount of support, as opposed to underpaying and being hit with arrears at a later date.
In any situation involving retroactive child support, it is important to understand your rights and obligations. If you have questions about the retroactive child support you may owe, or be entitled to, the lawyers at Crossroads Law can clarify the law and apply it to your specific situation. Please contact us for a consultation.
For more information or assistance with child support orders and how to change them contact the Calgary family lawyers at Crossroads law for your free consultation, or try our free Child Support Calculator to help determine what your child support payments should be anywhere in Canada.
