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somethingelse · #1 05-25-2016, 08:29 PM

Hi

A question about child support arrears: If the payor's income increases but there is no new order for a couple of years, when a new amount is ordered, are arrears calculated for the time during which the old order was still in effect (but income was higher than that used to produce the order) or not?

Or, do arrears exist only for periods for which there is an order for payment but less than the ordered amount was being paid?

To clarify: Can the payor be held responsible for arrears when there wasn't an order for payment of the amount said to be in arrears?

rockscan · #2 05-25-2016, 10:11 PM

Theres a supreme court case called DBS where this was considered. The onus is on the payor to advise the recipient their income has changed. Theres a question of responsibility though. The payor "should" be paying the increased amount but in some cases where there is a maintenance agency (MEP/FRO) its difficult to do that without a new order or agreement. There is also a responsibility on the recipient to get a new order for this amount. The recipient also cant let arrears accumulate to say ten years and $100,000 as that can be claimed as unjust enrichment etc.

Bottom line is, if income goes up cs goes up and both parties have an obligation to ensure the cs matches the income. However, if the payor is hiding their increased income then they are wrong.

To answer your question, arrears are calculated based on the change in income but not usually more than three years and if you are with an enforcement agency you will need an order to get them.

This is all my understanding--not a lawyer.

stripes · #3 05-26-2016, 12:00 AM

My understanding is similar to rockscan's - the payor is responsible for notifying the recipient of increases in income. If both parties have an agreement to exchange financial info each year, this is straightforward, but if they don't have such an agreement, it's tricky for the payor to determine how much of an increase in income is sufficient to trigger a recalculation of support. From the few court cases I have looked at, judges tend to react strongly to "blameworthy conduct" on the part of the payor - like refusing to send financial information when asked or lying about their income.

The amount of time that has passed and the amount of increased income is also relevant here. So if it's only been a couple of months, and the amount of increased income is fairly small, and the payor hasn't evaded or deceived in responding to inquiries from the recipient, the likelihood of being ordered to pay retroactive support is pretty small (assuming the payor increases payments going forward).

somethingelse · #4 05-26-2016, 06:54 AM

Thanks both of you for your helpful responses.

To add to the mix, the recipient was informed of the payor's increase in income each year but did not ask for an increase in payments until some years later. Any more ideas/cases?

Thanks again.

standing on the sidelines · #5 05-26-2016, 07:57 AM

Quote:

Originally Posted by somethingelse

Thanks both of you for your helpful responses.

To add to the mix, the recipient was informed of the payor's increase in income each year but did not ask for an increase in payments until some years later. Any more ideas/cases?

Thanks again.

that puts a different spin on things. Yes it is the responsibility of the payer to notify of increase in income and it seems that was done here. Not sure if the recipient is entirely blame free for not asking for an increase in payments or take steps to get the increase until years later. What was the reason for not pursuing the increase the same year(s) the income went up?

stripes · #6 05-26-2016, 09:20 AM

Put it another way - why didn't the payor adjust payments at the time s/he notified the recipient? Were they really waiting for an email from the recipient saying "please pay me the correct amount of CS"? If support was being made through a third party like FRO, I can understand that it might take a while for the change to be processed, but if CS was being paid directly, why didn't the payor just pay what s/he owed?

(Or put it yet another way, if the payor' income had decreased substantially, would s/he have waited for the recipient to request less CS before reducing payments?).

Beachnana · #7 05-26-2016, 09:37 AM

Actually going g to a settlement conference tomorrow on a motion to adjust CS and pay 3 years of underpayment arrears.

No actual T4's or NOA had been sent as required until he was forced in another motion to get section 7 payments paid. Then When he finally disclosed his income he had been lying by about 15 k per year. The judge at the first motion gave us an opportunity to bring a motion forth and go directly to a settlement conference .

So another motion was put forth to claim the arrears and that future payment ref left his new salary. It's not a lot of money, so we just sent a motion to consent expecting him to sign and we would then prices through FRO.

But he did not and now we are actually heading to a settlement conference tomorrow.

In theory tax returns are exchanged and everyone nicely consents to the amount of CS to change upwards or downwards. But this does not seem to,happen.

somethingelse · #8 05-27-2016, 06:07 AM

Rockscan, the DBS decision has been helpful. Thanks.

Beachnana · #9 05-27-2016, 07:53 AM

Heading into settlement conference this morning on this very issue.

CS has not changed since the SA in 2013. CS was based on the payers declaration of his income, which now after finally obtaining the actual NOA and T4's appears to be understated.

So asking for retro for 2013, 2014,2015 and for 2016 to reflect new income level.

You would think it should be easy right? But knowing family law now it would appear not so.

We shall see.

roxyroller71 · #10 05-27-2016, 02:48 PM

Quote:

Originally Posted by Beachnana

Heading into settlement conference this morning on this very issue.

CS has not changed since the SA in 2013. CS was based on the payers declaration of his income, which now after finally obtaining the actual NOA and T4's appears to be understated.

So asking for retro for 2013, 2014,2015 and for 2016 to reflect new income level.

You would think it should be easy right? But knowing family law now it would appear not so.

We shall see.

when u say understated T4's ...what do u mean? does the t4 not reflect the notice of assessment? and how about the last paystub?
Im having issues myself over it... and any info on how a bonus is reflected and received on those?

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