Retroactive Child Support for 10 Years

[caringdad]

Divorced in March 2000.

Primary residence of the 2 children is with the mother. Only spend 30% of time with me. Therefore it is only my information used to calculate child support.

I gave the required financial information each year to my ex wife by the dates noted in the agreement. Unfortunately, I did not use registered mail. I either handed the items to her or mailed them to her. I did note down a few of the dates that I mailed or gave the items to her. On one occasion I sent a letter with other issues on it, and it said "you will also find my enclosed tax information....". That is about the best I can do to verify that I gave her the required documents.

Also during the last 10 years, she made several threats to me that were like:

"if I wanted to, I could take you to court to have your payments increased" or "I am considering looking into seeing a lawyer about increasing child support".

Never once did she say, "I want an increase". It was always a threat, that was used when she was trying to control and manipulate me for visitation changes with my children: i.e. so she could have them longer at xmas.

Now, 10 years after the divorce, I have been served papers to pay $20 000 in retroactive child support. There is also an increase to my child support. It was originally $540 per month. Now it will be $900 per month. Her lawyer wants me to pay $300 per month on top of that to pay off the retroactive amount. That in total would be $1200 per month.

I have added up all of my income and monthly expenses. After I pay my mortgage, taxes, RSP loan ( which is more than the value of the rsp due to the economy), car loan ($350 per month), utilities, insurance, and line of credit - there ends up being a shortage of $500 per month that goes beyond my take home pay. I am also paying for post secondary education for one child now, and another one in 2 years. Would a judge consider this to be financial hardship when considering the merits of the motion to increase child support. Basically, I have to borrow to survive.

Wouldn't this give one household a greater economic advantage over the other one as well? My ex wife only starting working 3 years ago. She was a stay at home mother for the first 7 years. Now she has a job that pays the same if not more than mine, and she also recently received an inheritance from the death of her mother. The inheritance is also funding the child support increase for her. I can't afford to pay a lawyer to properly defend myself without going further into debt.

She claims over the 10 years in an affidavit that she requested an increase from me verbally several times. She also gave vague dates about when she sent me a letter asking for an increase. The vague dates would say "on or about November 2003". I did not receive the letters, and I think it is odd that she would not keep a copy of the letter to verify her claim. Obviously if she had kept a copy she would know an exact date and be able to produce a copy. I requested a copy of the letters from her lawyer, but have had no response. Is her lawyer obligated to give me a copy of the letters? Or is that something that happens once court proceedings have started. They start in 30 days.

Just as I didn't send my financial information using registered mail, she is not able to verify her "claims" that she sought an increase in support. Will this be a big mess in court? Will the judge treat it as "he said, she said"?

Is it worth putting up the battle to defend myself? The last thing I want to do is spend thousands, if not tens of thousands, of dollars to defend myself and then to lose.

I know I am obligated to increase my monthly support payments, and I am willing to do that for the benefit of my children. But it seems unreasonable and will cause me hardship to pay the retroactive amount.

Do I stand any chance of having a favourable outcome in court proceedings?

Please help me. Any insight or advice would be appreciated.

[rwm1273]

She had an obligation t seek an increase of support, and you had an obligation to increase your support.

However she did not, and you did not. A judge will question both parties as to why she did not make an application to increase support, and you will be asked why you did not increase your support.

There has been some changes to awards for arrears in recent times, and the Supreme court of Canada has made it clear that the payer has an obligation to voluntarily increase support payments when their income increases.

However you may be able to limit her going back on an increase to 3 years. But a judge will adjust the arrears as he sees fit. This will most likely be based on a "needs and means" argument.

Are you currently paying guideline support?

[caringdad]

There were several attempts over the 10 years where I attempted to change the custody arrangements with the children, which would most likely give me a 40% or more time ratio with the children, and this would reduce the amount of support I would have to pay. I sent a letter to her lawyer about 5 years ago saying I wanted to adjust all of the issues between me and my ex including child support, and I never received a response. I did not have the finances to further pursue the custody issues, and I never received a response about adjusting the child support. There was a very good chance the custody arrangements would have been improved in my favour if I had used litigation, but I could just not afford it. I believe she didn't push for the support to be increased because she did not want to compromise the custody arrangements that were in her favour. I did not want more time with my children to decrease my support, I wanted more time with them because they were my children. The children were 4 and 7 at the time of separation. The separation agreement included a clause that allowed for changes to custody when the children were older and increased visitation with me would be considered. When I sought to make changes, my ex-wife refused to mediate with me, and then she refused to negotiate with my lawyer about custody and access issues. So finally, I stop using my lawyer, became self represented and sent her lawyer a letter saying I was open to discussing all issues. And, like I said earlier, I did not hear anything back. That was in 2005. In early 2008, I received a letter from a different lawyer to address Child support issues.

I continue to pay $540 a month in support which has not been increased over 10 years.

[standing on the sidelines]

you will not get copies of the letters as I think there were never any letters to begin with. Her lawyer will ask for the moon to try to scare you and get you to settle.

[InterprovincialParents]

You will have a tough fight to have arrears limited, although you do have an option to ask the court to limit arrears on a claim of undue hardship, however, it is always the payor's responsibility to maintain child support annually in respect to the guidelines.

[InterprovincialParents]

As well, print a copy of every email "threat" as that will help your case.

[billm]

You will have a tough fight to have arrears limited, although you do have an option to ask the court to limit arrears on a claim of undue hardship, however, it is always the payor's responsibility to maintain child support annually in respect to the guidelines.

What if the separation agreement does not specify how to adjust or simply states the CS shall be $450?

10 years retro CS is not reasonable in your case, but it does depend on what happened between you, ie what was the agreement, what requests were made.

Too bad the both of you seemed to tie support to access, though shame on her as equal parenting is your right in my opinion.

[caringdad]

Support is not tied into access. I am fine to pay more, but she avoided all attempts by myself to negotiate new access and custody arrangements. Her family is well off, and she is not hurting financially, nor are my children. This is related to pride on her part and being a possessive mother.

[billiechic]

no, if you knew your income had increased, you should have cut the cheque with the amount according to the tables. It's not negotiable. You have some responsibility and you didn't live up to it.

Maybe you should start paying the proper amount now and she might be more amicable?

[caringdad]

Are you a lawyer? I just talked with mine yesterday, and he said that I have a good chance in court. Did you get the short end of the stick at one time with support issues? I actually responded to her lawyer that I wanted to discuss support and access issues as soon as possible - that was 5 years ago. Now I am served papers? It is funny that she inherited some money 3 months ago, and now I am served. I asked her lawyer again last week to discuss a settlement, and he did not respond. The sad thing about the whole process is, that she will negate what she receives from me in legal fees. My lawyer can't believe it when I explained the details to him. This is a spurned ex. I know I will have to pay an amount, but it will not be 10 years worth. Most consensus and opinion leans towards 3 years. I welcome that. I know the money will benefit my children.

On the flip side, now that the matter will be litigated, I will ask for her to contribute to the children's post secondary expenses. My lawyer feels with her inheritance and change in circumstances (now productively working), that my ex should contribute. At the time of the divorce, my ex stated that she was going to be a stay at home mother until the children left home. That is why I agreed to pay for the post secondary education. Now she is earning more than me, and she also has an inheritance. So after lawyer fees, and her having to now contribute to post secondary - she will be back at square one!

It is not as open and shut as you state. I did not deprive my children of anything. She was able to send them to a private school with her families financial resources. They went on major holidays, and had a better home and car than mine. All that on $540 per month. I would never let my children's well being be compromised at either home. There are serious flaws with this process and laws. Fortunately we live in countries where inbalances such as this can be challenged.

[HammerDad]

Billiechic is right to some extent.

The onus is on the Payor to advise the payee that they have had an increase in income and the payor is to increase the amount in accordance with the guidelines. There was a case in this regards which set the precedent a few years back in Alberta that went all the way to the Supreme Court, which outlines this requirement (google - Alberta 4 Dads Child Support).

While you may be able to provide proof that you advised your ex that you wished to re-open access and child support, it may only help in mitigating the amount of arrears you owe. She does have an obligation when you don't come forward with financial information to request it herself, but that obligation isn't as significant as your obligation to tell her of the increase. She will have to argue that going back 10 years isn't a wealth transfer, and that the child have suffered by your neglecting to increase your support each year in accordance with the guidelines to get all the arrears she is requesting. You will argue that you provided her with requests to re-open the access and support portions and received no reply and that going back 10 years will create undue hardship on you now and thus is unreasonable.

Each year you should be sending your ex an email stating "I made X amount last year. In accordance with the guidelines, that means I pay Y the year going forward."


Edit - with regard to the post-secondary education, you probably do have a good argument that she should contribute, as the guidelines provide that each parent shall pay an amount equal to their proportion of the parents combined income for extra-ordinary expenses. So if you make lets say $50k and she makes $60k, she should be obligated to pay 54.5% of all extra-ordinary expenses, AFTER taking into consideration any tax rebates that she receives (child activity credit etc.)

Also you mention this:

She was able to send them to a private school with her families financial resources

It isn't her families responsibility to be providing for your kids. I am on your side that if you can't afford private school it would be unreasonable to put them in it instead of public school. But don't confuse her family with your responsibilities.

[billiechic]

No, I'm not a lawyer, but your lawyer is biased toward you and I am not. You DO hold some responsibility. Note that I did not say it was all your fault. Until you admit (even to yourself) that you did not increase your payments as the law requires, you will be stuck in litigation. The key to getting out is to accept your mistakes and try to find a way for you both to accept some losses.

According to the facts, you will owe arrears. I just don't think it will be anywhere near the 10 years of arrears.

[billiechic]

It is not as open and shut as you state. I did not deprive my children of anything.

FWIW, nobody said anything about you doing this. Those are probably your ex's arguments, not mine. I just said you had a duty to increase CS as your income increased.

[caringdad]

I am good with the arrears. I am ok with the increase in support. I am just not ok with the process it has taken to get here. Thanks for your comments. I am not fighting against an increase, just about 10 years of retroactive support. I think 3 is reasonable. Litigating for more is a lose-lose proposition. It will cost the same in legal fess as what she will gain for wanting 10 years vs. 3.

Lets not forget the access issues here as well. She is just tacking them on since she is already in litigation for child support. All these years she avoided negotiating in good faith and refused mediation and discussion with lawyers. Now on top of the support issues, she wants to take away significant access times with the children, as well as decision making abilities I have. Without going into details, she wants sole custody. That is what she wanted 10 years ago too. Now she is trying to tie it into the litigation for support. It just strikes me as being vengeful. I see the whole thing as trying to scare me into not putting up a defense. I am going to borrow to defend myself. I ran out of money 10 years ago. Now I am willing to lose my house to stand on principle.

My lawyer is biased towards me of course, but he has told me when I am out of line before. He is very moderate and liberal. He is familiar with my wife's attempts with Parental Alienation Syndrome, and about her zealous protectiveness towards the children. I am not going to give in this time as I did 10 years ago.