arrears support after the fact

[jomm22]

Hi,

So I am interested in looking for arrears support on behalf of my mother for my younger brother and I. My parents separated in 1997 with very little lawyer involvement. They agreed on an amount of support (which I believe was lower than the table amount) and on custody. Custody quickly shifted to be almost entirely my mother (probably 90% or so) and support never increased, even though his income eventually increased.

As far as I know, they never went to court or had any kind of formal legal agreement for support payments.

He continued paying support until around 2005, but stopped when I was 16 and my younger brother was 13 ( in 2005) because he was laid off from work. Shortly after this point in 2006 we chose to stop seeing him as he seemed to be getting worse and worse at taking care of us, and his interest in us seemed to have disappeared. I know that he was employed again within a year at most, but at this point we did not want to contact him for any reason and my mom did not have time or money to look into the process as a single parent trying to juggle part time jobs in order to support us.

I went to university straight from highschool, and am still continuing my studies (finishing an undergraduate degree) and I am 21. My younger brother is now 18 and still needs to complete close to a full year of highschool in order to graduate (which he will be doing this upcoming year).

I have not contacted my father yet at this point, as I wanted to find out if I even have a chance at seeking legal action to obtain any kind of support from him. I have looked into the process of legal aid, and I think it would be an option for us as my mother has never made over 25,000 per year, and my brother and I are both students and not able to afford a lawyer.

So my question is, do we have any kind of chance at actually seeing support from our father, or would this be a waste of time and likely legal fees with no success?

[blinkandimgone]

Originally Posted by jomm22

I have not contacted my father yet at this point, as I wanted to find out if I even have a chance at seeking legal action to obtain any kind of support from him. I have looked into the process of legal aid, and I think it would be an option for us as my mother has never made over 25,000 per year, and my brother and I are both students and not able to afford a lawyer.

So my question is, do we have any kind of chance at actually seeing support from our father, or would this be a waste of time and likely legal fees with no success?

You would have no legal ground to seek support from your father as you weren't the payee, your mother was so it would have to be she who applied for anything. They had no agreement so you couldn't sue him for arrears when there was no support order.

I think the information you're looking for is on retro-active child support, there's lots of information on that here:

Retroactive Child Support

I get the impression you're looking for help for yourself and your brother in funding your post-secondary education. If that's the case, why wouldn't you just ask your dad to help you out rather than sparking up some potentially costly legal action that you may not even see an end to until the both of you are finished school?

You're 21 and your brother is 18, and you've been without the extra money for this long- it's been 5 years and your mother never filed for support, not entirely sure she would be awarded anything after this long and not taking any action. She may be able to file a claim for child support for your brother moving forward until he is finished his post-secondary education but again, a seperation agreement would have to be in place with a support order from the courts in order to enforce anything. That takes time and money and your mother is likely to spend far more money taking it to court at this point then she would see in child support - if anything.

[HammerDad]

With no agreement filed with the court it would be hard to prove arrears depending on what your dad admits to.

Not just that, but the table only came in to being around 1999, and any agreement prior to that is not subject to table amounts and the court or the parents could agree to any amount they felt appropriate, unless and until they go to court to have support updated.

Some of the points too are fairly moot. Unless your dad had you guys at least 40% of the time, going from 39% to 10% doesn't effect the amount of support to be paid.

You dad, instead of not paying, should have asked your mom to reduce support while he was unemployeed. If she didn't agree, he would have to go to court to get it reduced, as is his right. Income goes up, so does support. Income goes down, so does support, it is just harder to get that one through.

If I were you I'd talk to my dad about seeing if he can help you through college. Going for arrears is just going to get his back up and probably cause a nasty and expensive court battle, considering you are close to a year from emacipation and cases like this can take longer then that.

[NBDad]

Your MOTHER would have to initiate any court action, and probably wouldn't get any arrears (since she didn't do it right away). It'd be unjustly penalizing him and would only go to enrich her. (child support is supposed to be for the child, not the parent).

Your best option would be to approach your father for financial help in completing your post secondary courses for yourself and your brother. THAT you are entitled to. IF he refuses to help, then your mother needs to open a motion in court to have him ordered to pay a share of the costs.

No harm in at least ASKING him first. The worst he can do is say no, and at least then he has no one but himself to blame for any court actions that come up.

If it goes that far, your mother may want to consider asking for arrears, but agreeing to have them directed to you and your brother as his contribution to your education. That way it eliminates the possibility of any unjust enrichment argument, AND makes the offer a lot more reasonable.