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Old 02-26-2010, 07:31 PM
Mess Mess is offline
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Default Retroactive Child Support (Ont)

Does anyone know whether retroactive child support can be claimed in Ontario, or in what circumstances. I understand there may be some limitations, I know one is that it may only go back 3 years.

Essentially, in my case, we split up in June 2007, had some vague one-on-one negotiations through the fall, and actual letters from lawyers mentioning CS weren't sent until spring 2008.

My ex's lawyer is now saying that since a claim wasn't made until 2008, retro would only go back to then. Is there any hard rule about this?

Intuitively I would have thought that the entitlement to support was to the children, and it was automatic, so retro would have to go back to separation date. However in what I've been able to find in my reading, this is true in Alberta but it's not so clear in Ontario.

Any advice appreciated.
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Old 02-26-2010, 08:46 PM
JDaddy JDaddy is offline
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I'm about to find out. For the last 7 years, my ex has been living in the marital house rent free and mortgage free. Of course, during the same time, I have been paying rent or mortgage elsewhere. We have 50/50 shared custody and I have been paying her CS (based on half the difference of the Table amounts + SS based on what a mediator indicated the amount should be 7 years ago). As my salary has increased over the years, her lawyer now claims retroactive payments for both CS and SS for the entire period. Of course, I will be claiming occupational rent for the same period.

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Old 02-26-2010, 08:51 PM
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tugofwar tugofwar is offline
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I hope someone can give insight to this. My daughter has not received any type of cs from my ex for a year. Not a penny and had no involvement in her life until a few weeks ago.
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Old 02-26-2010, 10:55 PM
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Awarding retroactive support: factors considered by the Court

The court looks at a number of factors when determining whether a retroactive child support should be awarded, including:
  1. the child's age;
  2. delay in making the claim for retroactive support;
  3. whether there was blameworthy conduct on the part of either the recipient or payor;
  4. hardship to the child as a result of the non-payment;
  5. hardship to the payor if a payment is made.
The award should generally only be retroactive to the date when the recipient parent gave the payor parent effective notice of an intention to seek an increase.
When analyzing the factors above, one must keep in mind that the goal is to ensure that the children benefit from the support that should otherwise have been paid. Any incentives for the payor parent to be underpaying the support should be eliminated.
Unreasonable delay by the recipient in seeking an increase will militate against a retroactive award, while blameworthy conduct by the payor will have the opposite effect. It will work against the claimant if he or she had knowledge of the increase in the payor's income and took no steps to make a request for support adjustment. If the payor was under an obligation to provide his income tax returns or notices of assessment to the claimant under the Separation Agreement or court Order and failed to do so, he or she will be in some difficulty in resisting a retroactive support award.
The court must always be attempting to balance the competing considerations of fairness to the children and the certainty that fairness to the payor often demands. If the payor fulfilled his court order or agreed upon support obligation each and every month and structured his budget and financial decisions accordingly, it is difficult to find fault. Some blameworthy conduct must be shown. This balance obviously involves a detailed examination of the facts in the particular case. As such, issues related to retroactive child support claims can be difficult and costly to resolve.
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Old 02-27-2010, 07:24 AM
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I've seen that paragraph a lot. But it talks about awarding an increase. I haven't seen anything written about the intial claim for Child Support.

As far as I am concerned, support should be paid from the date of separation, not the date of the first official offer which may be months later after consultations with lawyers, etc. My ex delayed for months providing financial documents, which was one reason why we didn't make a claim immediately.
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Old 02-27-2010, 07:57 AM
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Default FRO changes - to stop SS and hve CS repaided

Does anyone know the procedure to stop FRO payments. We have gone to trial and have been successful. SS to be terminated and CS is repayable to us back to 2008. Of course payments are made through FRO anyone know where to start.
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Old 02-27-2010, 08:35 AM
Nadia Nadia is offline
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Unless the final court order/settlement clearly states that "any claim to retroactive support will not be made thereafter," I don't think there is a time limit on retroactive payments especially where there is good reason as to why a claim was not made earlier. For example, ineffective legal representation, delay in financial disclosure etc...
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Old 02-27-2010, 10:08 AM
billiechic billiechic is offline
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Mess it makes sense that CS should be paid from the date of separation. Not that I have any proof, but she should have been paying right from the start. I made my first payment one week after he moved out.
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Old 02-27-2010, 10:38 AM
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I know billie, but for two years now I have been getting the same letter from her lawyers, that she won't pay for the first year because I delayed in asking. (Supposedly).

In fact, I did bring it up in verbal negotiations during the first month of separation, but that's only going to hold so much water. I got a lawyer 4 months after separation (we were trying to work it out between us until then.)

She didn't provide financials for 6 months, we made our first formal offer around June or so of '08. She doesn't want to pay arrears until starting Sept '08 with not real reason given.

According to table amount she owes just under $20k, she is offering to pay $7k arrears.

I keep trying to look it up, and the results I get are all refering to people seeking retro for existing child support orders, but there was a change in income several years earlier and a several year delay in applying. In this case I see the point, and there is a fair bit of precedent that an application for change in support amount should be made promptly, or at least they should have asked for updated income proof, or something to show they were on top of it.

In my case I can't see any cases that deal with it. The Family Law Act is pretty clear that support is an entitlement of the children from the date of separation.

The difference between the $7k she is offering, and the $20k table, would pay my legal cost that have gone on my line of credit for the past two years.
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Old 02-27-2010, 11:29 AM
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Mess, has she not paid any child support? I have emails that I sent within a few months of leaving asking for support and a breakdown of monthly expenses for formula, diapers, wipes etc and ex still refused to provide with any cs. Also started to get a seperation agreement in place starting in may. I am seeking retro cs from the day I left. His response was that I left him with bills, etc and that in fact I owe him and that cs would start after we sorted out the house, finances etc.
I dont know how that would go over in court, nothing for a year! I also tried to do research and found all the same as you have.
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