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Retroactive Motion to Change?

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  • Retroactive Motion to Change?

    My husband is seeking a motion to change. The original court order was made in 1994. He is dealing with arrears, and is seeking that the order be changed to reflect 2006 guidelines. He is seeking a motion of change on consent.

    Today he spoke with Ontario Works, they informed him that child support could not be retroactively changed for years before 2006. Is this correct? We were of the understanding that he does have a material change of circumstances dating all the way back to 1994 (income wise), also we were under the belief that a person had the right to apply for a motion to change to retroactively adjust child support according to 2006 guidelines.

    The Ontario Works worker also declined his request to communicate through email stating it was too complicated and requested phone communication. The worker also declined to have any communication until a motion to change was filed, however they did want him to explain why he wanted the order changed.

    So, we are thinking that phone communication is not in his best interest, and that he should instead use letters and faxed communication. He is also feeling that he should just proceed with a motion to change as soon as possible and skip any kind of communication with the exception of that done thru the motion to change.

  • #2
    So your hubby is dealing with arrears going back 16 YEARS? Has he ever filed for a motion to change BEFORE now?

    Has he made ANY request to the ex (in writing) to apply ANY adjustments to his income since that time?

    The onus is on HIM to request a change if his income has also changed. Asking for 16 years back is going to result in him being eaten alive in court.

    How much $$$ are you talking about? 100's?? 1000's? 10000's???


    • #3
      When this all started he was 17years old, with no to very little family support, no highschool education, his income then with overtime sometimes 7 days a week was 18k/year. The arrears go back a long way but not all the way to the begining. His ex basically took the child for a visit out of province and never returned. He scrapped up money then went to a lawyer and was told tough luck, so sad your loss.

      He was devastated. His ex claimed he made 28k/year earnings, he didn't respond and as a result a court order was made to pay 300/month CS. He paid.

      Eventually he married and had 2 more children. Huge financial strains, two young children and one income that was 18k/year. He didn't know that he could ask for an adjustment in CS. Eventually his marriage broke down and he ended up divorced.

      Paying initial CS and then CS to the second two children. Basically he was on his own no family support, no highschool education, living in boarding houses to maintain a roof over his own head left with 28/week for food and transportation. Much stress.

      Was on stress leave from work, being treated for major depression. Moved to Ontario to try and get his life in order. Stayed with sister, obtained his GED. Went to college, obtained diploma. However it was during this time he fell into arrears.

      Couldn't find work in his field, never continued treatment for his depression and stress. He attempted to obtain legal aid during this period but was denied, the people he was living with made too much money.

      Between himself and his ex they never even tried to foster a relationship with the child and himself. Now they are basically estranged. He requested updates and pictures of the child, ex always said yes then never followed thru, he didn't push the issue.

      I don't know how much anyone here knows about depression, but it can be a very destructive disease, and he was caught in its downward spiral. Almost ostrich like, if you stick your head in the sand it will go away.

      His case is what happens when you do nothing. It is very sad for all involved, and it affects everyone.

      He currently is paying all currently court ordered payments and payments to arrears. He has a small amount of arrears owing to the second two children and has almost paid this off, while paying ongoing support.

      His arrears with regards to the first child are large about 40k. And yes he knows thats large and its terrible. Yes he is currently paying ongoing support.

      He knows that he should have done something, but unfortunately he cannot turn back the clock. He can only change the future. He is undergoing treatment for his depression and stress issues and has come a long way. His college diploma is pretty well useless except to say that he has one. He lives in the unemployment capital of Canada, and is working under temp agencies for money. All of his money goes to CS and Arrears and any left over towards legal fees. He still owes last lawyer $350.

      I know that this whole situation causes people to direct anger towards him, or so it seems. I have been trying to help him navigate thru this situation since August and I can see why he wants to hide. The prevailing attitude is that he should suffer some more and like it, and that he should keep paying whatever amount he was initially ordered to pay and shut up.

      When he tried to talk to his ex about a motion to change with consent, with CS set at 2006 guideline amounts, with arrears adjusted accordingly she stopped communicating with him entirely. He is also seeking termination of child support, rumor has it that the child is in post secondary school, no confirmation. He does realize that he most likely will have to pay ongoing CS while child is in college.

      If his child support is varied to reflect 2006 guideline amounts he will actually have overpaid his ex. Any arrears that are owing were accumulated during the time she was on public assistance. Right now his ex is working and not receiving assistance. He is not seeking any money, any over payments he wants credited to post secondary education.

      Both parties here are at fault of different things. Ex basically kidnapped son, way back when. But nobody cares. And he basically did nothing, but everyone is angry with him. They end up talking with me and i have to diffuse the anger and focus the conversation to dealing with the real time situation. Very frustrating.


      • #4
        He did not know of his legal rights and responsibilities. He was never informed or was misinformed. So now because he made a mistake in not educating himself he ??? what? Has to suffer because of it, he already is suffering because of it. And just because he didn't do anything in the past does that mean he should continue to do nothing?

        He doesn't want to play the mud slinging contest, or the poor pitty me contest, he just wants it settled so he can pay his CS, and move forward.
        People never want to talk about calculating the CS to guidelines they only want to know ask DO you know how much you are in arrears, and why did it take you so long.
        Yes he does know, that's why he wants it adjusted to reflect guidelines and most of the why answer just sounds like the poor pitty me game, so why play it he is trying to move beyond that.


        • #5
          Please read Difrancesco v. Couto. The case is not identical to yours, but it deal with recinding CS arrears. In fact I suggest doing a further search with that phrase, "recind child support arrears" and similar.

          The CS amount should never have been so high, he never had the means to pay. Paying the $40k is a clear case of undue hardship, and as well, since the child has presumably not starved to death in the meantime, the amount of CS that was paid was sufficient to care for her actual needs. Payment of these arrears should be argued as a transfer of capital to the mother, not required support for the child.

          I am not going to say this is cut and dried, but he does have a strong argument with some precedent to ask that the arrears be recinded. $40k is a lot of money for someone at his income level, not to mention his health problems.


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