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Old 08-10-2017, 07:11 PM
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Originally Posted by OrleansLawyer View Post
Be careful: there is a difference between arrears and a retroactive claim.

Arrears are owed - period. They are an established debt. A payor's failure to pay the debt does not excuse it later.

A retroactive award of support is for support that ought to have been paid. However, child support is for children, not for adults who used to be children. If the child is no longer a "child of the marriage" there will be no retroactive award.


113 Because the awards contemplated are retroactive, it is also worth considering the child’s needs at the time the support should have been paid. A child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award. On the other hand, the argument for retroactive child support will be less convincing where the child already enjoyed all the advantages (s)he would have received had both parents been supporting him/her: see S. (L.). This is not to suggest that the payor parent’s obligation will disappear where his/her children do not “need” his/her financial support. Nor do I believe trial judges should delve into the past to remedy all old familial injustices through child support awards; for instance, hardship suffered by other family members (like recipient parents forced to make additional sacrifices) are irrelevant in determining whether retroactive support should be owed to the child. I offer these comments only to state that the hardship suffered by children can affect the determination of whether the unfulfilled obligation should be enforced for their benefit.

Source: D.B.S. v. S.R.G, [2006] 2 SCR 231, 2006 SCC 37 (CanLII), par. 113, , retrieved on 2017-08-10.
Ah, okay, I was blending them together. Arrears must be paid, as there is a already an existing court order. Retroactive support is a new court order that tries to go back in time, and that's the one where it's more challenging.

So in this case, the arrears counted explicitly by the existing court order for CS absolutely must get paid. But to go back and try to retroactively adjust that CS based on previously unreported income changes, would that count as arrears, or retroactive adjustment?
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