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  • 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.

  • #2
    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.

    JDaddy

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    • #3
      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.

      Comment


      • #4
        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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        • #5
          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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          • #6
            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.

            Comment


            • #7
              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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              • #8
                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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                • #9
                  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.

                  Comment


                  • #10
                    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.

                    Comment


                    • #11
                      I moved out mid Aug 07, she gave a support cheque for about half what she would owe (table offset) in Oct 09 after I filled the court application. For two years there was not a penny. In that meantime I was paying my share of daycare, camps, sports, school fees etc.

                      Our second case conference is March 8, we just traded last minute offers/counters and all I got back from her is the same offer she has been sending me for the last two years. At this point I'm trying to as much actual court results or clear legislation as I can to refute everything she's been writing.

                      So far, we send an offer, she sends this BS back, we respond with a letter and she just sends the same thing back, and you know how it goes, it's a couple thousand dollars every few months paying the lawyer to read these stupid letters and reply. I wanted to be done with this back and forth a year ago, but it never stops. Grrr.

                      Comment


                      • #12
                        What happened at the first case conference and when was it?

                        Comment


                        • #13
                          Retroactive support and Ontario

                          When will a court make child support orders retroactive?
                          The Ontario Court of Appeal gives the answer in Walsh v. Walsh

                          By Joel Miller - March 6, 2004

                          This is a big question and one which is of clear concern to both child support recipients and payors. Child support is the right of the child and both the Divorce Act and various provincial legislation such as Ontario’s Family Law Act make it clear that the obligation to pay child support begins from the date of separation. As well, the fact that the payment of a lump sum for back support may create some benefit for the parent recipient isn’t a reason to reduce the amount.

                          The 2003 decision of the Ontario Court of Appeal in Marinangeli v. Marinangeli saw the court impute a duty of disclosure on the payor with the result that his failure to disclose his improved income situation resulted in a retroactive lump sum order reaching back prior to the date of the commencement of the variation proceeding.

                          In the February 2004 decision of the Ontario Court of Appeal the situation has been clarified to show that what was the law remains the law. In Walsh v. Walsh the Ontario judges once again looked at and embraced the reasons give by Justice Rowles in the 1999 British Columbia Court of Appeal decision of L.S. v. E.P. Apart from finding some actual factual basis for imputing a contractual obligation to disclose changes in circumstances courts will be reluctant to make child support orders retroactive to a period before the commencement of the variation proceedings even though the payor failed to disclose substantial increases in income. To get the order made to cover the prior period the recipient will need to prove that the children needed more support than was being paid and the at the payor had the ability to pay it during that time.

                          The court, in a decision written by Justice John Laskin, wrote at paragraphs 28 and 29:

                          [28] Along with need and ability to pay, other factors may also affect the decision to award retroactive child support. Rowles J.A. discusses these other factors in L.S. v. E.P. (1999), 50 R.F.L. (4th) 302 at (B.C.C.A.), leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 444. She lists as considerations in favour of a retroactive order at 320-21:

                          (1) the need on the part of the child and a corresponding ability to pay on the part of the non-custodial parent;

                          (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 on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses;

                          (4) an 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 maintenance followed by negotiations to that end.

                          And as considerations mitigating against retroactive orders, Rowles J.A. lists:

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

                          (2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and

                          (3) a significant, unexplained delay in bringing the application.

                          These considerations were approved by this court both in Marinangeli at para. 72 and Contino v. Leonelli-Contino (2003), 42 R.F.L. (5th) 295 at 322.

                          [29] Mrs. Walsh's affidavit evidence may support a retroactive order. But this order must be justified by applying some or all of the considerations in L.S. v. E.P. to proper findings of fact. And before any factual findings are made, Mr. Walsh is entitled to test Mrs. Walsh's evidence by cross-examination. Thus, the motions judge erred both in ordering a retroactive increase, and in doing so on an interim motion.

                          In Walsh Justice Laskin also stated:

                          [20] I have no doubt that the motions judge could reasonably have found a "change of circumstances" and varied the child support order, effective from the date when Mrs. Walsh brought her motion. The substantial increases in Mr. Walsh's income constituted a change of circumstances under s. 14 of the Guidelines. Mr. Walsh effectively recognized this change of circumstances by consenting to increase the amount of child support he was paying once Mrs. Walsh brought her application to vary.

                          [21] What the motions judge could not do was retroactively "adjust" or "recalculate" child support to reflect the payor's increase in income. Nothing in the Divorce Act, the Guidelines or this court's case law gives a judge a freestanding right to recalculate and then adjust child support retroactively.

                          And:

                          [24] Many separation agreements provide for an annual exchange of financial information and adjustment of child support in accordance with the Guidelines. The court may also imply a duty of disclosure into a separation agreement in limited circumstances, as this court recently did in Marinangeli v. Marinangeli (2003), 38 R.F.L. (5th) 307. Absent such a contractual duty, however, failure to disclose an increase in income does not allow a court to award a retroactive increase in child support. Instead the payee must ascertain a payor's change in income, apply for a variation, establish a change of circumstances, and if seeking a retroactive order, establish ability to pay and need during the relevant period.

                          [25] Parliament could have made the policy choice to require parties to exchange financial information annually or at some other regular interval and to vary child support in accordance with the Guidelines. Indeed, I see valid grounds for such a policy choice. The right to child support is that of the child, not the custodial parent. The payor's failure to give effect to this right voluntarily and the custodial parent's failure to enforce this right should not deprive the child of the support he or she is entitled to. When child support is not automatically varied in accordance with the Guidelines as the payor's income increases, the child effectively subsidizes the payor's improved standard of living. Moreover, failing to vary child support with undisclosed increases in income rewards conduct that seems inconsistent with the Guidelines. But Parliament has not made this policy choice.

                          So that makes it pretty clear that unless lawyers can find something to allow a judge to impute some ongoing obligation to disclose substantial changes in income they won’t order a backdated payment unless the requirements of L.S. v. E.P. are met.

                          For a detailed examination of when the courts have and haven’t found the facts to satisfy the L.S. v. E.P. test, read Retroactive Child Support - Who's right is it anyway, the article by Paul McInnis reprinted in the FLC’s Cases and Comments section under the heading Child Support Guideline material.

                          Comment


                          • #14
                            Thanks, Nadia. The Walsh v Walsh was an instance where there was an existing CS order, there had been a change in income, and some delay before seeking an increase in CS. The decision was over retroactive support due to increased income.

                            I think that I must simply be on safe ground, there is no decision about a NEW support order, the Family Law Act is clear that support begins at date of separation.

                            Comment


                            • #15
                              I hope that is true Mess. But that fact that she gave you a cheque for CS right at the beginning of separation implies acceptance. Any test of the law will take that as a contract. If you have a copy of that cheque, you should be on pretty solid ground.

                              Let us know what happens. My first Case conference is 2 days after, March 11.

                              Comment

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