Retro back pay

[doug10]

Stumbled on this site and overwhelmed by all the help and knowledge.

I have a situation, looking for any insight or advice with retro back pay that I was served my my daughters mother.

Long story short..... We had a very friendly and respectful relationship and a verbal agreement in place for access and support for our child that ended July 2018. I asked for more access and to have the child over nights when she was away out of the country. We have NEVER exchanged financial and she has never asked for me to up date and pay the child support guideline amount.

I have never missed a payment as FRO takes each pay and always pay any expense asked for my daughter. We have a court order from 2012. I make a lot more money since then.

I was servered by her lawyer asking for back pay to 2012 ?

Is she entitled to the back pay if she has never asked and can not show the courts any documents proving this.

I know the 3 year tax rule but my opinion is she is not entitled to any back pay. It’s like she is holding me hostage, she’s only demanding the money because I demanded to have my daughter more.

Any help is appreciated.

Cheers !

 

[rockscan]

Technically you are supposed to exchange financial information annually regardless of what your agreement says.

Calculate how much you should have been paying for the last three years.

 

[doug10]

If our agreement says that we are to exchange to each other and it has never happened because of our respect for one another not because I refuse or hiding, do you feel as I do, the judge will ask, why now ?? Why all the sudden after 6 years are you asking for back pay ??

I’ve lawyered up and have my common law partner as a witness to the amount of access time my daughter was with me.

Worst case, I pay the $$$ it’s going to cost and get my shared custody in a court order and move on.

 

[StillPaying]

If our agreement says that we are to exchange to each other and it has never happened because of our respect for one another not because I refuse or hiding...

Either your income never went up so nothing should have changed, or you were hiding it. I believe they can go back 3 years before they first asked for it.

 

[rockscan]

A) its PARENTING time not access time and regardless of how much time she was with you, you don’t have an order for off set which means the time is irrelevant.

B) regardless of her not asking for the update, your income increased and if it was significant you should have updated her. You may get away with playing dumb that your agreement had an end date of July therefore you were going to update then but the likelihood of that flying with a judge is low.

You have two separate issues here: parenting time and support. If she filed a motion to update child support then your counter motion should be to pay your retro cs and increase time with your child. Your argument is that you have been increasing time, there are no issues with her being with you and you feel a move toward 50/50 offset is IN THE BEST INTEREST OF THE CHILD.

Figure out how much you should have been paying monthly and keep that number on your negotiation list. You WILL have to pay retro, its simply a question of how much.

Lawyering up means nothing. Stop throwing that around like its going to protect you. Your ex was allowed to request an update to cs especially if your income has increased significantly.

 

[Janus]

We have NEVER exchanged financial and she has never asked for me to up date and pay the child support guideline amount... I make a lot more money since then.

The onus is on the payor to keep the recipient informed of changes in income. The idea is that while you are in a great position to know that your income has increased, your ex is in a much less privileged position when it comes to finding out that information.

If you guys had exchanged tax returns and she still didn't ask for the increase, that might be a reasonable argument, because you were not hiding your income. In this case though, you were certainly hiding your income, no matter how you try to spin it.

Financial disclosure is an ongoing obligation for you, and you failed to live up to that obligation.

Is she entitled to the back pay if she has never asked and can not show the courts any documents proving this.

You have broken the rules, that means the court is not going to give you much slack. She is probably almost guaranteed the 3 years of back pay. Whether it goes past that will hinge upon her explanation as to why she didn't ask you for your financial information. Expect her to give some variation of "I was afraid of what he would do"

I know the 3 year tax rule but my opinion is she is not entitled to any back pay. It’s like she is holding me hostage, she’s only demanding the money because I demanded to have my daughter more.

Undoubtedly that is exactly the reason she is asking for the back pay. If you kick, you should expect to get kicked back.

I think you are going to have to cave on the CS back pay. Offer 3 years of it, pay it immediately before trial if you can, and make the trial be focused on getting equal time with your daughter. Your CS behaviour looks super shady, and you don't want that in front of the judge if you can help it.

 

[Janus]

Either your income never went up so nothing should have changed, or you were hiding it. I believe they can go back 3 years before they first asked for it.

It is even worse, the 3 years is only if the payor was not doing anything wrong. If there has been deliberate misbehaviour on the part of the payor, then they can go back further than 3 years.

Doug was hiding his income, the courts are not going to like that at all. He could easily end up on the hook for the entire arrears.

 

[StillPaying]

Once the court determines that a retroactive child support award should be ordered, the award should as a general rule be retroactive to the date of effective notice by the recipient parent that child support should be paid or increased, but to no more than three years in the past. Effective notice does not require the recipient parent to take legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair. However, where the payor parent has engaged in blameworthy conduct, the date when the circumstances changed materially will be the presumptive start date of the award.
http://canlii.ca/t/1p0tv

I think you're right. It'll come down to what the judge views as "blameworthy".

Is it that he didn't notify ex of his substantial increase in income, or would it be if he lied, refused to provide, etc.

 

[denbigh]

we are to exchange to each other and it has never happened because of our respect for one another

really? is that why you never gave your updated income? because you respect her?
just listen to how that sounds. 100% unbelievable

It sounds to me, no one did anything because no one wanted to rock the boat, she didnt want to give up parenting time, and you didnt want to give up money. That is how I would interpret it. Well now the boat is rocking. Best to start doing what most people do, which is exchange every year and pay the amount of child support you were supposed to pay.

 

[doug10]

Thank you for taking the time and reading.

My opologies if that’s how you feel or think on it.

Like I said at the end. I’ve lawyered up. Our order now is from 2009 when the child was 3. As of 2014 to July of 2018, the child was spending time equally with each parent. We never followed the court order and there was never any need as we both..... Ready for it. RESPECTED EACH OTHER AND PUT THE CHILDS BEST INTERESTS BEFORE OUR OWN! lol

I have NEVER missed a support payment, I would go above and beyond any extra expenses for the child.

It’s pathetic how if the mother of a child wants to play the “ power and control “ the first thing they do, is ask for more money ! Lol

How about if the mother and her husband of 12 years, who live in a 500 000 house travel every other month, have all the sudden found financial difficulties and want more money on top of the support they already receive just ask the father if he would like to have 50 50 ?!? Hmmmmm. Weird, how they never offer that isn’t it. lol..... wonder why ??


My daughter, is the one that suffers, her mother and I will spend thousands fighting. Whata I do !?? Say fine, here’s your money and ya, it’s ok, I don’t need more time with my child. Come on ?

The mother wants more money because the child’s father has demanded the child stay with him while ” travel two “ as I’ve nicked named them, travel all over the planet. It all sucks BUT it should NEVER be about money !! How about equal rights and money is never an issue.

Why do I need to go to a judge and ask for this ? Why are mothers of children so fast at demanding and threatening I’ll take your money !!

Wait..... I remember now, because that’s how the family court law is. Pathetic. 1971 BS.



Who, in their right mind wants to drag their child into a tug of war and spend thousands when this money could go to the child’s future!?? Fathers that love their children unconditionally and mothers who love “ power and control “ and as soon as the lawyer tells them how much money they can clean out the father for, that takes to priority. Joke but God’s honest truth.

Done ranting, probably shouldn’t have as I did not proof read lol


I have to fight for my access, if I do not, the mother has enforced the 2009 order. My access is very limited as the child was 3 when it was finalized.

The mother threatens me, about money !?? lol. She can have all she wants, as soon as she proves to the court that the child from 2014 was not in my care at least 40% of the time.



Hopefully this gives you a better idea. Respect lol ... Maybe you should in light me on what your view of respect is!??? I’m lost on that comment. Sorry.


I’ll up date this thread as it proceeds. Court starts feb 2.





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[kate331]

I'm a Mom, who would trade cs for 50/50. And I have little respect for any Father that doesnt want it, hence I dont have alot of respect for my ex as a Father. But it is what it is. And yup, I'm in court asking for more $$$.

Its not up to your ex's husband to support your child financially, that's your job (respect). Did you not want your child to benefit from your hard work and increased income?

Why didnt you have 50/50 from the get go? Or did you wait until you had a new partner to help you? Now status quo has set in, and your in for an uphill battle, why upset the child's schedule now to save you an increase in child support?

My ex too is "lawyered up", but its not helping him much except delaying the inevitable. As much as the court are filled with Fathers asking to be equal parents, there are Fathers also not living up to their responsibilities, hence the term "Deadbeat Dad".

Just my 2 cents.

 

[denbigh]

This is confusing. You said this problem all began when you asked for 50/50, but in another sentance you said you have child half time for several years. if you had the child half the time and were paying the full table amount based on the time of the separaion agreement, was this amount equal, or higher or lower than the amount you would have paid if the CS was offset for 50/50 with your higher income?

 

[doug10]

I appreciate all the insight. Im trying my best to give a some what decent idea of my situation. I’m not doing a very good job by the responses I’m getting. Instead of writing a book I’ll try and point form my concerns with it all. None of us, I’m presuming are layers or judges but the opinions by all respected.

So my story to get me at 38/ 62 child access 2009 order

Father, me, I know I’m going to get jumped and all the negative will come but I’ll be honest. I’m a recovering alcoholic who has been sober since Dec 2013, that struggled with addiction up to that Christmas of 2013.

I had no shot at 50 50, the mother has sole custody, I didn’t have a chance obviously in court with my checkered resume. I guess as the old saying goes, you really don’t know how hard it is to get sober and clean when you have the struggle.

So, this brings us to 2013, I continue to prove my sobriety and my life starts turning for the better. The mother and her husband recognizes and start supporting me and we all become really good friends. Christmas’s together, any event for my daughter birthdays and her sports, hell myself and common law partner watched my daughter and their other small child for 10 days, while they were away, all was merry and happy!

I’m still trying to gain respect on the new me and pretty much kissing ass, not asking or questioning certain things, I didnt want to chance the positive thing and all the extra time I was now getting. ( This is were the over 40 % my daughter is with me starts )

2016- I start questioning things, basically feeling that I’m not getting any respect and wondering why I’m having my daughter all the time but paying full child support. I didn’t want to rock the boat in fear I would be in the position I am now. lol.... Should have listened to my instincts.

The child lives 10 mins from my home and with technology now days, she would text or call any day of the week and I would run over and pick her up because I I love my daughter unconditionally, hence why I finally got sober in 2013. I absolutely loved the fact that she was calling and wanting to see me.

So, this goes on to July 2018. Unfortunately, there was a huge blow up, that was brewing for a couple years, it erupts and my time with my daughter that was freely
shared with her, was cut immediately back to the 2009 order. I now get her Thursday for 2 hours, Friday 6 to Sunday 5, not a minute longer. It sucks that much more as we love to snow board together, it was nothing for us to go a couple times through the week. ALL CUT lol

Now the bickering and threats go back and forth, I truly did NOT want to go and fight in court, I was hoping, the mother would come around and get over it all. My daughter is now 13, she has a voice and to drag this back into a court room!?? It will not be settled anytime soon as the courts are backed up for months.

I shut up about court to the mother, she in return serves me in Nov, asking for retro child support and to give my notice of assessments. No worries on start exchanging our financial but retro !? Really ?? NEVER ONCE asked to prove my income, the mother knows more than I do the child has been in my care more than 40 % over the years, he’ll probably close to 60. lol

My opening thread was, is she entitled for retro ? I still say NO, only because the child since 2014 was in a shared and equally time environment with both her parents. I’ve been served, I have to respond, some jumped on me in replays about respect and lawyering up bla bla bla. WHAT in the hell else is there to do?


My lawyer feels we have a strong case, obviously I have tons of support and evidence that proves the child has been in my care over 40%.

If you read earlier threads I posted there is a lot more info on the situation. My daughter is all I think about, she is my only child, I beat myself up everyday for being the loser, I was before getting sober... I know that’s harsh, living as a recovering alcoholic you now have a lot of time to reflect on your past.

I’ll fight to the end and try and get my time I once had with my daughter. It makes me sick to think how long it might drag on and the wasted money, that could have been used to pay for her education, just anything but money hungry lawyers.

I’ll never be able to live with myself if I do not fight till the end. THIS is why I’ve lawyered up and THIS is why I’ve opened up and asked for options and opinions in my earlier threads.


I feel I should always apologize for my spelling and grammar after writing, I do not go back and proof read. lol


Thank you for taking the time and reading

Cheers !

 

[arabian]

Hi Doug - congratulations on your sobriety!

I agree with much of what the other posters have to say but would add a few things.

You have mentioned 2 court orders (2009 and 2013). In either of these orders is there mention of exchanging financials on a yearly basis or was this an oversight at time respective orders were made?

Yes most of us who have been through family court and are paying/receiving support have the obligation to exchange financials with the other party. This is standard in family law.

While your income has increased substantially your ex's may have as well. Without seeing her financials you don't really know her financial situation.

Your ex will have to give a plausible reason why she did not pursue matters until last Fall, particularly if there was no mention of financial exchange in any of the orders. Always remember, child support is the right of the child. You can go on to CanLii and search for cases similar to your own to get a feeling of how courts have ruled.

I think it is a good thing that you have had FRO extract CS and that you have not been under collection from FRO throughout the years. Be sure to get a print-out of all CS going back to 2009. This will show that you are a "good payer."

So start by immediately exchanging your financials. Do not delay. If you buck against this that doesn't look good and will immediately put you in a very defensive position. Lawyers will make oodles of money off of you and your ex if you refuse to exchange financials. In the end you will likely be ordered by the court to do so anyhow. Courts consider what difference in child's life-style would have been had the custodial parent received the appropriate child support. For some custodial parents who live in abject poverty, receiving the correct amount of money would have made a world of difference to child. So, you really want to see what sort of income your ex has had over the years to be able to properly defend your position I would think.

On another matter, prepare to change current order (2013?) to appropriately reflect the child custody/access.

You aren't the first person, nor the last, who have made changes to child custody with other parent and who did not follow-up with a change in the court order.

In order to save $$ on lawyers try to educate yourself as much as possible on legal aspects of this process so your lawyer doesn't waste precious time bringing you up-to-speed. Of course, I always tell people to be very watchful of their legal bills (insisting on a detailed bill each and every month). Know what your lawyer is spending your hard-earned money on.

 

[Janus]

Who, in their right mind wants to drag their child into a tug of war and spend thousands when this money could go to the child’s future!??

Indeed, who?

I’ll never be able to live with myself if I do not fight till the end.

That's who!


Anyhow, there are two things you are fighting for:

1) Parenting time
2) No paying retro CS


The parenting time fight is reasonable. You had status quo shared custody, and it was unilaterally changed. You have a reasonable chance of winning that fight.

The retro CS fight is substantially less reasonable. CS orders are due until they are changed. CS orders also require continuing and fulsome disclosure, which you did not do. You are much less likely to win this fight. In fact, you might lose so badly it could hurt you in your parenting time fight because you say a lot of unreasonable nonsense when it comes to the retro CS. Your multiple paragraph sob story was almost completely irrelevant to the retro CS issue.

I hasten to add that I'm not actually against you. I think the retro CS is bullshit. I'm just saying that you are going to lose horribly.

I'll repeat my advice:

I think you are going to have to cave on the CS back pay. Offer 3 years of it, pay it immediately before trial if you can, and make the trial be focused on getting equal time with your daughter. Your CS behaviour looks super shady, and you don't want that in front of the judge if you can help it.

I feel I should always apologize for my spelling and grammar after writing, I do not go back and proof read.

I thought it was fine, it didn't stand out as being egregiously lousy in any way.

 

[doug10]

Thank you for this. I can’t emphasis how much I appreciate all that has taken the time to chime in. I pay a lawyer that loves answering my uneducated family law questions. I would represent myself but feel I will get embarrassed as I do not know all the family law rules. Going with my heart and I what I feel is in the best interest of the child doesn’t hold much weight in a court room against a venteran lawyer.

2013, for financial does say we are to exchange to each other. I’m really bothered by so many saying you should have known to just exchange ? Is it not her obligation to “just know to exchange “ as well?

My daughter is very fortunate to have both her mother and father in very good financial situations. I guess going above and beyond my required court order financial obligation all these years means nothing. lol

My only hope is to prove my daughter all these years has been in my care more than 40%. The following the judges orders, is sad, I feel, that I failed on trying to be fair and understanding with her mother. I think as grown adults, if we both put a little effort in on trying to keep it out of a court room, my daughter would be the winner not myself or her mother.

Thank you for your advice Arabian and Janus, I will make an offer to settle retro in advance of Feb 26 not 2nd court date.

It’s NOT about money, if I chose to fight the retro, the judge might look at my case as the only reason I want the order changes is because of the support. I have emails and texts over the years that prove my case on time with my daughter, I’m thankful that my common law partner will be able to write a sworn affidavit to support as well.

Once again, thank you. I say it a lot as I truly mean it.