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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 09-10-2019, 03:59 PM
AlmostThere_Hopefully AlmostThere_Hopefully is offline
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Default Retroactive Child Support

Hi all!

How are retroactive child support payments awarded? An additional amount added to the current payment, payment plan, lump sum????? Is the way and amount it's paid determined by the judge or do I have to put that in an Offer To Settle??? Any help would be much appreciated.
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Old 09-10-2019, 04:03 PM
jaycollins5888 jaycollins5888 is offline
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Quote:
Originally Posted by AlmostThere_Hopefully View Post
Hi all!

How are retroactive child support payments awarded? An additional amount added to the current payment, payment plan, lump sum????? Is the way and amount it's paid determined by the judge or do I have to put that in an Offer To Settle??? Any help would be much appreciated.
First a judge decides if it's even warranted. Then, a judge determines if it's in the best interests of the child to order it. Then, finally, a judge determines how much to order and whether all due in lump sum or a small amount each month.

You can put it in an offer to settle. If your offer ends up being better than what they get from the judge, you can then seek legal fees. However, this goes both ways and the same song whistles with their offer to settle to you.
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Old 09-10-2019, 04:05 PM
AlmostThere_Hopefully AlmostThere_Hopefully is offline
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Wow, thanks for your quick reply. Thank you so much!
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Old 09-10-2019, 04:39 PM
rockscan rockscan is offline
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Originally Posted by AlmostThere_Hopefully View Post
Hi all!



How are retroactive child support payments awarded? An additional amount added to the current payment, payment plan, lump sum????? Is the way and amount it's paid determined by the judge or do I have to put that in an Offer To Settle??? Any help would be much appreciated.

It all depends on the case, situation, payor, judge and history.

If it is an order, it is put into an order by a judge. They normally set down how it is paid depending on the amount and the payorís ability to pay (i.e. someone who makes $25,000 a year may not be able to pay a $10,000 lump sum all at once whereas someone with considerable income and assets may be ordered to pay all at once). A judge normally can determine this and set it out in the order. They do ask both parties in some instances to determine a reasonable course of action. Sometimes they donít.

If you are putting it into an offer to settle, look at doing it in a reasonable way. For instance, they owe you $10,000 and they are already paying $500 per month in child support. If you believe they can afford it, offer that they pay you $5,000 up front and $500 per month on top of cs for a specific period of time. You should also offer to waive interest if the arrears are paid in a specific period of time.

If you live in a province that has an enforcement agency like FRO, you should request that the order reflect the arrears as support owed for the agency to collect as part of the support deduction order. Some judges in some areas are savvy now and do know how to set out the order that way.

If it is simply an agreement between you two say reached at a conference, the agreement should be set out as a support deduction order to be enforced.
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Old 09-10-2019, 07:52 PM
LovetoDance LovetoDance is offline
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How does the judge decide if it's warranted?
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Old 09-10-2019, 07:55 PM
jaycollins5888 jaycollins5888 is offline
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Originally Posted by LovetoDance View Post
How does the judge decide if it's warranted?
Was there a material change in circumstances? If so, what is the material change? When did it occur? What is the supporting evidence? Did support recipient request a change in support from the other party? When? Was there a delay before when they were turned down by the support payer and when the recipient brought the matter to court? If so, how long was the delay? What is the reasoning behind the delay?

What is the support payers testimony/evidence and response with respect to the support recipients testimony??

Once the fundamental questions are answered and both sides stated their side, the judge conducts an independent analysis based on what the judge believes to be the case and then applys the law and any relevant case law and decide if it's warranted based on our laws and facts of the case.
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Old 09-10-2019, 08:54 PM
rockscan rockscan is offline
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Quote:
Originally Posted by jaycollins5888 View Post
Was there a material change in circumstances? If so, what is the material change? When did it occur? What is the supporting evidence? Did support recipient request a change in support from the other party? When? Was there a delay before when they were turned down by the support payer and when the recipient brought the matter to court? If so, how long was the delay? What is the reasoning behind the delay?

What is the support payers testimony/evidence and response with respect to the support recipients testimony??

Once the fundamental questions are answered and both sides stated their side, the judge conducts an independent analysis based on what the judge believes to be the case and then applys the law and any relevant case law and decide if it's warranted based on our laws and facts of the case.


This isnít true for retroactive awards. The prevailing case law on child support and retroactive awards is DBS et al. The supreme court decision addresses child support, income, duty to update and how far back retroactive awards are determined. Within that case law are details on how the bench decides on retro support. To summarize...cs retro is not always presumptive. There are two elements: blameworthy conduct on the part of the payor and when the recipient sought child support. It sets out a rule that regardless of the agreement between the parties, the payor has a duty to share updated income information and update child support when their income changes. In cases where the payor has income increases and did not advise the recipient, they can be found to exhibit blameworthy conduct in which case a retro award is almost always ordered. A support recipient has to demonstrate that they sought income information and requested updates to support based on income changes. This too plays into blameworthy conduct. If the payor was asked for updated income info and provided it but did not update, they could again be found to be blameworthy and a retro award can be ordered. Finally, the court can consider retro awards farther back then three years but the decision sets forward a three year view. That doesnt mean that if your matter has been going on for five years they scrap the last two, it means that the court will look at three years previous to your request to update.

Basically the court will look at when a person asked for info, whether a payor responded, whether they provided proper disclosure and whether they willingly updated.
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Old 09-10-2019, 09:18 PM
jaycollins5888 jaycollins5888 is offline
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Originally Posted by rockscan View Post
Basically the court will look at when a person asked for info, whether a payor responded, whether they provided proper disclosure and whether they willingly updated.
So basically if a material change in circumstances took place. The very first thing I said that must occur. Did you read that very first sentence? Go back and read it.


The delay is a factor. Here is case law - I know you like your canlii case laws.

Quote:
[10] There are eight factors that the Ontario Court of Appeal has accepted as appropriate when considering an application for retroactive support.

[11] The five factors in support of granting a retroactive order are:

1.need on the part of the child and corresponding ability on the part of the non-custodial parent to pay increased support;

2.some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order;

3.necessity of the custodial parent to encroach on his or her capital or to incur debt;

4. excuse for a delay in bringing the application where the delay is significant; and

5.notice to the non-custodial parent of an intention to pursue support.

[12] The three factors against making a retroactive order are:

1.the order would cause an unreasonable or unfair burden on a non-custodial parent especially to the extent that such a burden would interfere with ongoing support;

2.the only purpose of the award would be to redistribute capital or award spousal support; and

3.there is a significant unexplained delay in bringing the application.
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Old 09-10-2019, 09:40 PM
rockscan rockscan is offline
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Your description was confusing and lacking in details. Plus for support purposes, a material change is not needed for a motion for disclosure which would trigger a change in support. If the other poster was made aware their ex was earning more money but the person didnít disclose even after a written request, that poster could then file a motion for disclosure. They do not need to demonstrate a material change in circumstances. Adversely, the other party could file to change support due to a ďmaterial changeĒ in income or employment. It was a blanket comment that didnít answer fully how judges determine retroactive awards which was what the question is. Material changes are not always necessary in a motion for support especially when it involves refusal to disclose.
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Old 09-10-2019, 10:50 PM
jaycollins5888 jaycollins5888 is offline
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Quote:
Originally Posted by rockscan View Post
Plus for support purposes, a material change is not needed for a motion for disclosure which would trigger a change in support.
What you are talking about here is imputed income. Which is a whole different ballgame with much higher burdens than material change circumstances, though material change is still the first step.

Quote:
Originally Posted by rockscan View Post
If the other poster was made aware their ex was earning more money but the person didnít disclose even after a written request, that poster could then file a motion for disclosure. They do not need to demonstrate a material change in circumstances.
A motion for disclosure isn't a motion for imputed income - nor is it a motion for retroactive claims.

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Originally Posted by rockscan View Post
Adversely, the other party could file to change support due to a ďmaterial changeĒ in income or employment.
And they should. Because if they don't, then they will probably return to court 4 years later for a retroactive claim based on this historic material change. And will have to explain the delay.

Quote:
Originally Posted by rockscan View Post
It was a blanket comment that didnít answer fully how judges determine retroactive awards which was what the question is.
Says the poster who's giving confusing and misleading tangent-ed info, and is inadvertently talking about imputed income.
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