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  • 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.

  • #2
    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.

    Comment


    • #3
      Wow, thanks for your quick reply. Thank you so much!

      Comment


      • #4
        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 payor’s 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 don’t.

        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.

        Comment


        • #5
          How does the judge decide if it's warranted?

          Comment


          • #6
            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.

            Comment


            • #7
              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 isn’t 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.

              Comment


              • #8
                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.

                [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.

                Comment


                • #9
                  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 didn’t 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 “material change” in income or employment. It was a blanket comment that didn’t 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.

                  Comment


                  • #10
                    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.

                    Originally posted by rockscan View Post
                    If the other poster was made aware their ex was earning more money but the person didn’t 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.

                    Originally posted by rockscan View Post
                    Adversely, the other party could file to change support due to a “material change” 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.

                    Originally posted by rockscan View Post
                    It was a blanket comment that didn’t 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.

                    Comment


                    • #11
                      Originally posted by LovetoDance View Post
                      How does the judge decide if it's warranted?


                      This was the question the poster asked. The case law on retro active awards was clear on how it is determined. By the time that decision happens both parties will have done the material change argument, provided their facts to prove their case and/or provided timelines and amounts.

                      Comment


                      • #12
                        Originally posted by jaycollins5888 View Post
                        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.
                        No thats not what Im talking about nor is it even the same. A motion for disclosure is to GET DISCLOSURE. Having income imputed does not relate to disclosure. They are two separate issues. Someone who is refusing to disclose doesn’t necessarily need imputation. They need to disclose their income which is REQUIRED under the guidelines. FULL STOP. Someone who is hiding income, is self employed, refuses to work or is purposely under employed would be an ideal candidate to have imputed income sought by the opposing party.

                        A motion for disclosure isn't a motion for imputed income - nor is it a motion for retroactive claims.
                        No its not and I never said it was. You brought imputed income into this.

                        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.
                        If they received a retro award and the payor continued to refuse to provide ongoing disclosure it wouldn’t require a material change. It would be refusing to follow an order for disclosure and would require a motion to compel disclosure. Note to anyone thinking of withholding disclosure: you piss off the judge.

                        Says the poster who's giving confusing and misleading tangent-ed info, and is inadvertently talking about imputed income.

                        I didn’t say imputed income and you’ve just proven my argument that you don’t know what you are talking about.

                        Comment


                        • #13
                          Originally posted by rockscan View Post
                          This was the question the poster asked. The case law on retro active awards was clear on how it is determined. By the time that decision happens both parties will have done the material change argument, provided their facts to prove their case and/or provided timelines and amounts.
                          You're still saying the same thing. The question of material change must be answered. I'm not even clear what you are disagreeing with me on anymore. Seriously.

                          Comment


                          • #14
                            Originally posted by rockscan View Post
                            Having income imputed does not relate to disclosure. They are two separate issues.
                            You are wrong. Since you really like case laws, here is some more case law for ya.

                            Imputing income

                            19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

                            (a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

                            (b) the parent or spouse is exempt from paying federal or provincial income tax;

                            (c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

                            (d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

                            (e) the parent’s or spouse’s property is not reasonably utilized to generate income;

                            (f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

                            (g) the parent or spouse unreasonably deducts expenses from income;

                            (h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

                            (i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. O. Reg. 391/97, s. 19 (1); O. Reg. 446/01, s. 6.

                            Originally posted by rockscan View Post
                            If they received a retro award and the payor continued to refuse to provide ongoing disclosure it wouldn’t require a material change. It would be refusing to follow an order for disclosure and would require a motion to compel disclosure.
                            Of course it wouldn't require a material change. But before you go into more tangents, let's clarify that's for only once after the retro award has been made. However, we are not talking about after here. We are talking about before.

                            Originally posted by rockscan View Post
                            I didn’t say imputed income and you’ve just proven my argument that you don’t know what you are talking about.
                            Only thing proven here is the gaps in your understanding or rather misunderstanding of family law.

                            I think it's best we allow poster to answer the simple questions I asked before it get's decided if there are follow up questions and which laws apply to them.

                            Because with your approach, you are just putting the wagon before the horse and talking about motions for disclosure and motion to compel disclosure, etc.

                            Comment

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