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How Is Canadian Child Support Retroactively Corrected Under The Child Support Guidelines?



At MacLean family Law Group www.bcfamilylaw.ca we as Vancouver divorce and family lawyers have handled a number of spousal and child support retroactive cases including an interim retroactive support award case called J v J . Our client was ecstatic when we obtained one of the highest interim awards of spousal and child support for our client which approached $30,000 per month combined, together with substantial retroactive child support.

We have also represented numerous clients where we have sought to retroactively correct child support upward to reflect increases in the paying spouses incomes as well as to retroactively correct downward support based on a paying spouse’s lower income on the basis that the paying spouses should pay support on the proper income under the guidelines.

If you want to correct spousal or child support retroactively call us at any of our 4 offices province wide or fill out our contact form so we can begin to assist you.

A good summary of the obligations each spouse has in this area can be found at the Justice Canada website

One question not directly raised in the Supreme Court decision is whether the principles set out within the SRG case apply to payors who seek a retroactive reduction in child support obligations.[62] D. Smith discussed this issue, noting that the argument in support of extending the Supreme Court’s discussion to retroactive reduction claims was likely to be that “the underlying principle of the decision is that support should match income—as income changes, so should support. In that instance, it is difficult to conclude that a reduction in income historically should not at least open the door to the analysis.“[63] It appears that this rationale has been successfully applied in a handful of claims seeking retroactive reduction of support obligations.[64] D. Smith’s conclusion, however, that while payor variations may be possible based on the reasoning within the decision, it will be difficult to succeed factually, is likely true.[65]Despite the fact-specific application of the factors set out in SRG and the associated challenges of predicting likely outcomes, some practitioners feel that the decision has enhanced certainty in terms of overall client expectations. Phil Epstein, for example, says that clients are now clearer about their obligation to increase support with increased income, and about the likely ramifications of not doing so.[66] Epstein and Madsen suggest that “the safe and cautious message to give payors is certainly to disclose changes in their income, pay in accordance with the Guidelines, or be at risk of a retroactive award at some point in the future.“[67]The implementation of recalculation schemes within each province and territory would, in the author’s view, be the ideal manner by which to foster greater certainty and relieve recipient parents of the potentially daunting burden of initiating negotiations for revised support obligations with a former partner. Until such schemes are in place, however, it would be extremely useful for counsel to consider the following approaches[68] when dealing with child support matters:

A. Recipients’ Counsel:

Discuss the consequences of the SRG decision with clients.
Include or ask for the inclusion of a requirement for annual disclosure pursuant to s. 25 of Guidelines in all agreements, minutes of settlement and court orders.
Include or ask for the inclusion of a requirement for annual adjustments of child support in accordance with income in all agreements, minutes of settlement, and consent orders and court orders.
Advise clients to make formal written demands for disclosure on a regular (not more than once a year) basis, and to record these demands in writing.
Advise clients to make note of dates of any informal requests.
Do not negotiate for too long.
Adduce proper evidence regarding the reasons for any delay in seeking additional support.

B. Payors’ Counsel:

Discuss the consequences of the SRG decision with clients.
Advise clients that their financial obligation towards their children survives the breakup of the relationship.
Advise clients to consult the Guidelines and pay the appropriate amount on a voluntary basis.
Disclose income increases on a regular and voluntary basis.
Advise clients that failure to disclose or delay in disclosing (especially after requested to disclose by recipient) may lead to a finding of blameworthy conduct that could lead a court to order retroactive support back to the date of material change in income.

REMEMBER DELAY PREJUDICES A SPOUSE SEEKING AN INCREASE AS WELL AS THE SPOUSE WHO IS SEEKING A DECREASE.

Category: Episodes

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Sep 27 2011 1:39 PM
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