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-   -   Time limit for requesting retro adjustment to CS (http://www.ottawadivorce.com/forum/f3/time-limit-requesting-retro-adjustment-cs-21261/)

lee1869 08-09-2017 11:05 AM

Time limit for requesting retro adjustment to CS
 
My daughter is 23 and has decided she will not return to school this September. Therefore, I understand and agree that CS obligations shall cease.
The child support arrears on record exceed $20,000 and this amount is accrued at an amount established in 2004. Several attempts in and out of court were made to request that he pay the tabled amount but he never complied and I was not positioned financially to pursue court intervention. He has finally surfaced and wants to deal with his arrears. I believe that his arrears should be adjusted to reflect the tables. However, I understand that I may not be able to do this because she is no longer a student. I have sought guidance from 3 different lawyers and received 3 different responses. There are extenuating circumstances that I believe may justify my claim for retroactive adjustments. This includes years of verbal and physical assaults on both the child and myself, chronic CS arrears creating hardship, payor initiating nonsense court claims creating more hardship, payor deliberately concealed his address and telephone number so no way to contact from 2014 until he was sure she was done school.

My questions: Should I take legal action to pursue retroactive adjustments or have I exhausted my time limit despite extenuating circumstances? I have tried to find jurisprudence in CanLii without success. Does anyone know of similar cases and outcomes?

Thank you for your time and consideration.

rockscan 08-09-2017 12:04 PM

Most of what you claim as circumstances is moot. Only the claim about concern for retribution is legit. If you have proof you asked for updated child support income information and he has refused to provide it then he has shown blameworthy conduct. You can calculate as far back as you have asked if he has done this. Otherwise the "rule of thumb" is three years.

Rioe 08-09-2017 12:50 PM

You definitely want to do further searching on CanLII to find precedents and ideas, but here are my thoughts.

The general logic behind not ordering arrears be paid up after a child is no longer receiving CS is to avoid a 'windfall' for the other parent that won't benefit the child. So I would think that to counteract that logic, you need to show the sacrifices you made to make up the CS shortfall he caused by going into arrears, and that the 'windfall' would actually go to reimbursing those.

For example, did you have to borrow money, from relatives or from a bank, to help pay for the child's expenses that CS ought to have covered? Then the 'windfall' would go to repay those loans, not to benefit you.

Or did you incur financial damages, such as having to pay unnecessary interest on your credit cards, or miss payments on bills and get charged penalties, by not having the CS you were supposed to have? Then the 'windfall' is really recompense for that.

But in your case, he deliberately went out of his way to not pay CS, concealed his contact info and his financial disclosure, etc, so he should not be excused from his past failed obligations now just because there are no current obligations.

lee1869 08-09-2017 02:04 PM

Thank you for this input. When we separated he stated I would never see any of his money and he has stayed true to his conviction regardless of the hardship that he caused the child. I was not able to assist with the child's post-secondary expenses so she worked 2 and 3 jobs and paid for 100% of her tuition, books, etc. Because he loathes me so much and does not want me to have the money what I am considering proposing is that he pay the child directly.

OrleansLawyer 08-10-2017 12:35 PM

Quote:

You can calculate as far back as you have asked if he has done this. Otherwise the "rule of thumb" is three years.
It is a bit more complicated then that. If no requests have been made there is no guarantee that the recipient will receive three years' of support - only that they will almost certainly not go beyond it.

Quote:

The general logic behind not ordering arrears be paid up after a child is no longer receiving CS is to avoid a 'windfall' for the other parent that won't benefit the child.
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.

Quote:

you need to show the sacrifices you made to make up the CS shortfall he caused by going into arrears
See:

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, <http://canlii.ca/t/1p0tv#par113>, retrieved on 2017-08-10.

Rioe 08-10-2017 06:11 PM

Quote:

Originally Posted by OrleansLawyer (Post 222757)
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.



See:

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, <HTTP: 1p0tv#par113 t canlii.ca>, 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?

lee1869 08-11-2017 09:45 AM

Thank you for these thoughts....invaluable! Other than room and board while attending school, I was not financially able to help her with her education costs and activities. As a result, in addition to a full-time course load she worked 2 to 3 part-time jobs around school and a full and part-time job during the summer in order to complete her post-secondary education.
So with what I am reading above, I may have better success to ask for the tabled amount for the past 3 years which coincide with her years in post-secondary plus 1/3 of the cost of her books and tuition.

Thoughts?

rockscan 08-11-2017 10:29 AM

I went back and re-read your original post in light of Orleans lawyers comments.

Your daughter is not going back to school because she has no more money? Does she have her degree?

If your ex has surfaced and is asking for a change to support I would recommend (and Im not a lawyer) that you tell him he needs to address his arrears before you make any decisions.

Here is why: Im assuming your daughter has a student loan which means she has gone into debt for her education. Plus if she hasnt finished her degree she would be using any money from your ex to complete it.

Personally (and again, not a lawyer) your case seems solid in the sense that your ex cant argue against a "winfall" order since the arrears have never been paid. Plus your daughter has been impacted by his refusal to pay and is unable to complete her education as a result.

Out of curiosity, are you with an enforcement agency and what are they doing? Has there been a writ for seizure applied?

Your ex would have to file a motion to discontinue support at which time you could argue that you have not been paid the outstanding arrears and your daughter has had to drop out of school.

lee1869 08-11-2017 11:34 AM

My daughter successfully completed the 2 year Power Engineering Program in the Spring of 2016 and is a 4th class engineer. She was going to go back for the 3rd in September 2016 but did not have the money for tuition and worked for the year to save and return September 2017 to complete the 3rd year and will be a 3rd class engineer. However, she has accepted a job offer instead and has decided to forego her education. I would rather she finish her education but it comes with benefits and she is off my plan since she was not a student for the past year. So, yes, his unwillingness to support has had significant negative impact on her!
I am with FRO and they have initiated harsh collection action on a couple of occasions in the past. However, he knows how to play the system and instead of making payment arrangements he takes it into court. FRO then ceases harsh collection pending the court hearing, and then he abandons court action mid-stream once he knows he has FRO off his back. I have to defend my position when he takes this action and have spent close to $70,000 in legal fees. Far more than I have ever or will ever hope to see in CS from him.
My daughter did not apply for a student loan as they require financial information about her father which she could not provide. Hence working multiple jobs.

rockscan 08-11-2017 12:03 PM

Have any of the lawyers said anything about an action to prevent him from filing anything until his arrears are paid?

Have any of the lawyers talked to you about costs recovery?


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