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Retroactive Child Support Ruling - SCC

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  • #16
    btw, non of this should really surpirse me. One court says this. Another says that. Every judge is different. The SCC usually states... hey, go off and figure it our for yourselfs. Round and round we go...

    *shakes head*

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    • #17
      Finally... a court ruling I can get behind!

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      • #18
        Why this doesn't seem logical and correct to everyone is just beyond my comprehension. Don't NCPs expect CPs to disclose any and all of THEIR income? Of course the same should be expected from NCPs! Just the same as we're all expected to report our incomes to the government, so should we to the reciprocal spouse. Frankly, I think in addition to the retroactive support, the spouse that doesn't fully disclose their income should also be subject to penalties and interest... same as false disclosure to Revenue Canada.

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        • #19
          I suppose then you (Sasha) would agree that a decline in income would merit and instant decline in CS?

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          • #20
            Yes Sasha if I loose my job or have to work less hours or you get a bigger raise should I reduce my child support. I'm sure you won't swing the otherway. Thats why this ruling makes no sense. It's time for men to start revolt.
            I'm curious how long it will take for a Case Conference now that the courts will most likely be tied up for years.
            It's time to revamp our Supreme Court, Fire all those old farts. Lets elect the judges

            Comment


            • #21
              I think both sides should disclose on a regular basis - not sure if this is going to grab the attention of the Harper government or not. Clearly a mechanism needs to be in place to make sure that the disclosure is done on a regular basis. Because the SCC basically said that disclosure is still voluntary, it does indeed create an "at your peril" situation for the NCP if they choose not to disclose. I see that the Toronto Star is calling for disclosure to be done through MEP or FRO - sounds great in principle - who is going to pay for the new staff and new program budgets across the country because the last time I looked the existing MEP/FRO staffs are buried in exisiting enforcement measures - seems to me that this would add a lot to an already overburdened program.

              On the issue of support being lowered for a drop in a payor's income - dream on. In a perfect world that would be great, but I have worked in this system long enough to know that a drop in your income will raise the hackles of your former spouse and they will argue that you are purposefully under-employing yourself and will try to impute income based on what they think you should be earning.

              The SCC had no choice but to make this ruling - the downside is that it will produce TONS of litigation for a variety of reasons. What's needed is a fairer child support system that encourages disclosure, rewards good behavior and that doesn't require repeated court appearances for years when disagreements arise or when jobs are lost/income drops.

              Comment


              • #22
                Great ruling

                If parent paying CS has a decrease in come the CS should reflect accordingly in the following tax year.

                The income of the parent receiving CS is not relevant.

                I support this ruling.

                Comment


                • #23
                  ruling

                  I support the ruling however its not like its going to change the parents out there that are being the dead beats to begin with..........my situation included.......some parents (not just fathers either) believe that support should clothe, feed, house, help educate and if needed help pay for daycare costs.........good freaking luck........then the parent that is to pay support gets in a twist when they are asked to come good for half of extraordinary expenses..........its a goods ruling however having the ruling then providing the enforcement of it are two different things........at the end of the day all the children of divorced parents are the ultimate ones to suffer

                  Comment


                  • #24
                    Originally posted by littleman
                    I support the ruling however its not like its going to change the parents out there that are being the dead beats to begin with..........my situation included.......some parents (not just fathers either) believe that support should clothe, feed, house, help educate and if needed help pay for daycare costs.........good freaking luck........then the parent that is to pay support gets in a twist when they are asked to come good for half of extraordinary expenses..........its a goods ruling however having the ruling then providing the enforcement of it are two different things........at the end of the day all the children of divorced parents are the ultimate ones to suffer
                    Hear hear! The ruling in itself is a good one that makes sense. But getting those who pay child support to agree that they are not paying enough or should be helping out with extraordinary expenses like childcare - if they're not cooperating now, and you're hurting for that extra money that you are entitled to, the extra expense of dragging them to court isn't much of an option.

                    Ultimately, the decision, while it makes sense, is merely fodder for more fighting between separated/divorced spouses.

                    Comment


                    • #25
                      Hear hear! The ruling in itself is a good one that makes sense. But getting those who pay child support to agree that they are not paying enough or should be helping out with extraordinary expenses like childcare - if they're not cooperating now, and you're hurting for that extra money that you are entitled to, the extra expense of dragging them to court isn't much of an option.
                      Unfortunately the decision means more court for people who simply can't/won't/refuse to find a collaborative solution. There are a wide variety of methods to keep both parties from going to court in a child support dispute. For example, a comprehensive parenting plan that details who does what and who buys what can work - both parties would have to agree to depart from the section 7 expenses. I have worked with people who were so fed up with the litigious nature of child support law that they simply decided to provide for the children's needs independent of each other save for major expenses that were shared.

                      The SCC has made it's ruling - unfortunately the "one size fits all" methodology of child support legislation doesn't take into account the changing dynamics of the Canadian family - as a result, litigation is always on the horizon.

                      Comment


                      • #26
                        Originally posted by Decent Dad
                        Once again we see a symptom of a larger problem and once again the media fuels the fire of a stereotypical payor (i.e. dad). The larger problem, IMO, is the divorce laws, family law and CSG are ill-thought out messes.

                        One of the intangible human factors in all this is that men are completely afraid of the courts and the system.

                        Off the top of my head, lets look at some of the unevenness in income disclosure, court orders, CSG, etc.

                        So, it stands to reason that the payor must increase payment when income goes up (as per the SCC) and for that matter, common sense. Having not read the decision, did they also state that payments automatically go down when income decreases? What about losing your job? Having read several cases and personal experiences, having a decrease in income or losing your job usually equates to NO CHANGE in support. Judges love to impute income and so on.

                        Interesting too how legal fees for raising support are tax deductable. Lowering support is not.

                        Lets skip on over to the FRO. On there FAQ page they state:

                        What is the Family Responsibility Office?
                        The Family Responsibility Office (FRO) works under the authority of the Family Responsibility and Support Arrears Enforcement Act, 1996. Its role is to help support payments flow from payors (people who make support payments) to recipients (people who receive them).

                        What does the Family Responsibility Office do?
                        The Family Responsibility Office (FRO) receives every support order made by a court in Ontario and enforces the amounts owed under the order.
                        The FRO has the legal authority to collect court-ordered support payments and arrears of support and to take any of the following enforcement actions against those parents who do not meet their support responsibilities:

                        Okay... so everyone must go back to adjust their court order (since the system has no inherent mechanism to make adjustments). Once again, income up, support up, income down... not so black and white.

                        Or, lets say you reduce you support due to reduced income. Well, thats a no-no with the FRO. You are now in arrears! No where on the site could I find information regarding reduced income or any form to indicate reduced income.

                        Also, child support awards (the table amount) are increasingly getting bigger and bigger. Yikes... it is about $500 per child. And it just went up.

                        I think they need to look at the entire picture here... not just some guys following the court order.
                        Just dropping by to see what is new with the recent ruling. I beg to differ on the reply above...legal services/fees, etc. are tax deductible for either raising or lowering the support...the key to this is having an existing order in place, to which you are claiming the deduction.
                        Keep in mind, that if legal expenses are awarded under an order variation, this must be claimed as income.
                        Hope this helps.

                        Comment


                        • #27
                          I'm just going on the Tax Law that states:

                          "21. From the payer's standpoint, legal costs incurred in negotiating or contesting an application for support payments are not deductible since these costs are personal or living expenses. Similarly, legal costs incurred for the purpose of terminating or reducing the amount of support payments are not deductible since success in such an action does not produce income from a business or property. Legal expenses relating to obtaining custody of or visitation rights to children are also non-deductible."

                          Comment


                          • #28
                            The excerpt you provided is from the same CCRA IT-99R5 bulletin I used to deduct to contest/prepare responses to an existing support order. Refer to sections 18 and 19;

                            18. Legal costs incurred to enforce pre-existing rights to interim or permanent support amounts are deductible. A pre-existing right to a support amount can arise from a written agreement, a court order or legislation such as sections 11 and 15.1 of the Divorce Act with respect to child support, or Part III of the Family Law Act of Ontario, and enforcing such a right does not create or establish a new right; see The Queen v. Burgess, [1981] CTC 258, 81 DTC 5192 (F.C.T.D.). In addition, legal expenses incurred to defend against the reduction of support payments are deductible since the expenses do not create any new rights to income; see The Attorney General of Canada v. Norma McCready Sembinelli, [1994] 2 CTC 378, 94 DTC 6636 (FCA.).

                            ¶ 19. The legal costs described in ¶ 18 above are deductible even though an amount received as a "child support amount," as described in subsection 56.1(4), is not included in the income of the recipient. While "exempt income" in subsection 248(1) is defined as property received or acquired that is not included in income, the definition excludes "support amounts"; therefore, the deduction of costs incurred in respect of support amounts is not denied by virtue of paragraph 18(1)(c) as being exempt income. For a discussion of "support amount" and "child support amount," see the current version of IT-530, Support Payments.

                            The question becomes, if the recipient is allowed to claim expenses for a pre-existing order, then the payor is also allowed to claim expenses for a pre-existing order. The key is whether motions give way to new or existing rights of income.

                            I have deducted "legal expenses" (I will include another excerpt from CCRA bulletin to substantiate the claims I have made in the past), with the understanding that any costs awarded by the courts must also be declared as income, in the year awarded.

                            28. It is not always necessary that the fees relating to matters described in paragraphs 8(1)(b) or 60(o.1) be paid to a lawyer.

                            Hope the above clarifies.
                            G

                            Comment


                            • #29
                              We should clarify on the thread whom we are talking about (recipient or payor). For example:

                              Just dropping by to see what is new with the recent ruling. I beg to differ on the reply above...legal services/fees, etc. are tax deductible for either raising or lowering the support...the key to this is having an existing order in place, to which you are claiming the deduction.

                              To whom are the deductions allowed? I assume not the payor as per paragraph 20.

                              I have deducted "legal expenses" (I will include another excerpt from CCRA bulletin to substantiate the claims I have made in the past), with

                              On what basis? As the recipient or as the payor? If you deducted legal expenses as the payor... I'd like to know how...

                              Comment


                              • #30
                                Sorry about the confusion. I guess I had a assumed that it was known that I was the payor from previous posts in other threads...which was dumb of me to presume.

                                I claim it under line 232, and under the explanation, I refer to the court file number and order date.

                                The key to the deduction, is that support has already been established - the right to income - if there was no support established, then the legal fees wouldn't be deductible since it is considered personal expenses as outlined in the CRA bulletin.

                                Basically, you are deferring the legal costs on an existing order, until costs are awarded. In my case, I have legal expenses related to building my case to gain the overpayments back. So, in a sense its really deferring taxes on an amount which could be awarded back to you at a later date. So far, I have made the claim for the last 4 years, been reassessed, and no ill effects.

                                If there was any further question to the claim, I would point to the SCC rulings referenced in the bulletin and claim, that as a right, I have legitimate deduction as a payor, as does the recipient under the same sections, as allowed under the income tax act and associated bulletins and rulings.

                                Again, sorry for the mixup, and good luck with the claim.

                                Comment

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