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  • retroactive child support

    Hey everyone,

    This is a hypothetical question. I pay child support to my ex wife. Let's say my ex spouse and I have an arranged cs payment that is 100 dollars less than what she is supposed to be getting. Now let's say a whole year goes by and she asks dor my t4 for the past year, and now sees my income for the past year and sees that she should have been getting 100 more a month. Can she get the money afterwards? Or what would happen to me? Are there consequences? Thanks, I'm new to this stuff.

  • #2
    Child support it the right of the child. If payor elects to pay a different amount and payee agrees, that is between them. But it would not necessarily hold up in court.

    Child support should be adjusted each year, according to your agreement (ie. June, july whenever), based on the previous years Notice of Assessment.

    Adjust it each year so she won't come back and claim retroactive later.

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    • #3
      But my question is CAN she actyally get it. Like will the court rule in favor and make me provide the rest that wasn't covered?

      Comment


      • #4
        Originally posted by childsupportquestions View Post
        But my question is CAN she actyally get it. Like will the court rule in favor and make me provide the rest that wasn't covered?
        Yes. That is why you should always adjust it accordingly. She has no right to negoatiate it; it is the childs, not hers.

        But, is it worth it to fight for $1200??? That's the question.

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        • #5
          Makes sense. Thank you very much. I appreciate it. I have anothetr question while you are here. I read somewhere that if I have custody 40 percent of the time you do not have to pay. So what do they consider 40 percent? Like 12 days out of the 30 or what.

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          • #6
            Originally posted by childsupportquestions View Post
            Makes sense. Thank you very much. I appreciate it. I have anothetr question while you are here. I read somewhere that if I have custody 40 percent of the time you do not have to pay. So what do they consider 40 percent? Like 12 days out of the 30 or what.
            Nope. Once a payor reaches that threshold, child support becomes offset, not eliminated.

            You can check the child support guidelines to learn how offset works.

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            • #7
              Originally posted by childsupportquestions View Post
              Makes sense. Thank you very much. I appreciate it. I have anothetr question while you are here. I read somewhere that if I have custody 40 percent of the time you do not have to pay. So what do they consider 40 percent? Like 12 days out of the 30 or what.
              Generally when you raise the kids equally (which is considered true if you have the kids between 40 and 60% of the time), then you have to pay CS to each other (this is called the offset method).

              Easiest thing is to use where the child sleeps to count days. Anything else is problematic to prove.

              So yes, if the child sleeps at your place 12 nights out of 30 (or perhaps 3 out of 7??), then that is 40% of the time and she now should pay you CS just as you pay her.

              It is important for tax purposes that any agreement and receipts state that you pay each other CS. In reality you can simply have the greater income earner pay the lesser income earner the difference (ie the offset)

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              • #8
                In addition to scouring these boards re: offset CS, you should also familiarize yourself with cases that are similar to your situation on Canlii

                CanLII - Canadian Legal Information Institute

                From the cases I've read, it would appear that retro would only be granted from the initial date notified/requested. Of course, if she has asked for your NOA, that might be construed as a request for table amounts.

                I'm curious, if you had both agreed to a certain amount, why would she ask now for your NOA? For years I've agreed to/accepted a certain amount, and never asked for an NOA. What he earns was his to do with as he would, provided he met our side agreement. Has your ex actually asked for table amounts via your NOA?
                Start a discussion, not a fire. Post with kindness.

                Comment


                • #9
                  Retro depends a bit on the circumstances.

                  Circumstance #1: There was no child support, or minimal child support, paid since separation, with no existing agreement or order. In this case, because child support is the right of the child, the retroactive amount goes back to the separation date, no matter how long it has been. In many cases this can be longer than 3 years, if the parties have been negotiating, but one party is stalling. By the time you get a court date, it may be longer than three years.

                  Circumstance #2: There is an existing arrangement/order, and it hasn't been updated for longer than three years. The law here is on both sides. There is no penalty for the payer to not update or increase the support if they are not asked to. However, if they are earning more money, then support should have increased, and the increase will be retroactive. The number of years that it will go back is not set out in legislation; case law suggests three years. If the receiver has been trying to get an NOA for several years but not getting any response, then certainly the payer would be seen as avoiding, and the retroactive amount would be beyond three years if the income was higher for such a length of time.

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                  • #10
                    Originally posted by oink View Post
                    Did you honestly just say this? So tax payers are suppose to pick up the tab for your kid(s) then? I hope you never repeat these words again

                    Oh....here is another point "while you are here", I hope you are aware of Section 7 expenses?
                    it is apparent that the OP doesnt know how CS works and is just asking some questions to get informed.

                    Comment


                    • #11
                      Originally posted by oink View Post
                      Did you honestly just say this? So tax payers are suppose to pick up the tab for your kid(s) then? I hope you never repeat these words again

                      Oh....here is another point "while you are here", I hope you are aware of Section 7 expenses?
                      This comment makes no sense. How does his question about not paying CS to each other if you are raising the kids equally have ANYTHING to do with tax payers??

                      Also, there are many people (who are not divorced, or are single), that are surprised to learn that if the kids live equally with both parents, that CS still happens.
                      Last edited by billm; 04-13-2013, 11:47 AM.

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                      • #12
                        Originally posted by billm View Post

                        Also, there are many people (who are not divorced, or are single), that are surprised to learn that if the kids live equally with both parents, that CS still happens.
                        Tell me about it! My relatives were shocked to find out I pay over $700 a month in a 50/50 custody arrangement. Even my sister who's divorced and had full custody of her 3 kids didn't know about the offset method.

                        Comment


                        • #13
                          Originally posted by iceberg View Post
                          So you would go to court spend tax payers money to save $1200?

                          Mom2three: I know you can file for R/A cs unlike mcdreamy claims for upto 3 years, but can you do it in shared custody?
                          This appears to be the go-to case when determining retro (it's been cited over 1,000 times):

                          CanLII - 2006 SCC 37 (CanLII)

                          and from that case "In determining whether to make a retroactive award, a court should strive for a holistic view of the matter and decide each case on the basis of its particular facts. The payor parentís interest in certainty must be balanced with the need for fairness to the child and for flexibility. In doing this, the court should consider the reason for the recipient parentís delay in seeking child support, the conduct of the payor parent, the past and present circumstances of the child, including the childís needs at the time the support should have been paid, and whether the retroactive award might entail hardship. Once the court determines that a retroactive child support award should be ordered, the award should as a general rule be retroactive to the date of effective notice by the recipient parent that child support should be paid or increased, but to no more than three years in the past. Effective notice does not require the recipient parent to take legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair. However, where the payor parent has engaged in blameworthy conduct, the date when the circumstances changed materially will be the presumptive start date of the award. "

                          If you can find some current cases, where retro was awarded for the period of time beyond the initial notice/request of the recipient (excluding blameworthy conduct of the payor and undue hardship), I'd love to read them. They would certainly work to my advantage.
                          Start a discussion, not a fire. Post with kindness.

                          Comment


                          • #14
                            Originally posted by oink View Post
                            billm....you don't make sense. Are you certain that the OP was actually talking about paying CS "to each other"? If he is indeed saying that, then I take back my comments, but if he is talking about not paying CS at all, then I stick to my original comment
                            Yes

                            Originally posted by oink View Post
                            The tax payer comment was a tongue in cheek comment, that obviously went over your head.
                            Given the comment you are referring to, this statement also makes no sense.
                            Last edited by billm; 04-14-2013, 10:17 AM.

                            Comment

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