How Is Retroactive Child Support Determined?
In Canada, child support is governed by the Federal Child Support Guidelines which establish a standard for child support payments across the country to ensure that children from divorced families are financially cared for by both parents. The Federal Child Support Guidelines aim to reduce conflict around the amount of support payable and ensure that children and families of similar financial means are treated consistently.
When Does Child Support Become Payable?
Parents should consider and discuss child support payments as soon as they separate. A mediator can assist with these discussions and can provide the necessary tools to determine the amount of child support owing. In order to determine the appropriate child support, a mediator would need to review both parties yearly income as well as know the living arrangements of the children. Once this information has been determined, the mediator can then insert the incomes and parenting into a program designed to calculate child support, such as ChildView or DivorceMate, which will produce the amount of child support payable pursuant to the Federal Child Support Guidelines. If the parties are seeking to get divorced in Alberta, they must file a Divorce Judgment with the courthouse. If the parties have children, it is expected that the Divorce Judgment will include the child support agreement and be in accordance with the Federal Child Support Guidelines. If parties opt to stray from the Federal Child Support Guidelines for whatever reason, a Judge or Justice will need to see why this has occurred and why it is in the best interest of the child.
Retroactive Child Support: How Does This Apply?
In some situations, parties may need to reconcile past child support payments to be in accordance with the Federal Child Support Guidelines. This can occur for a variety of reasons but the most common are:
- the payor parent refuses to pay child support;
- the payor did not pay sufficient child support and needs to make up the difference;
- the payor received a bonus or raise and did not adjust their child support payments.
In any of these circumstances, the parties may be ordered to pay retroactive support to make up for the missed child support amounts. This can be ordered to be paid as a lump sum payment or it may be added to the ongoing monthly child support payments until all arrears are paid. It is important to note that the Supreme Court of Canada has ruled that retroactive child support can only be sought as far back as three years, unless the payor is found to have engaged in blameworthy conduct. As such, if you need assistance enforcing child support payments. It is important that you address your concerns as soon as possible to ensure this 3-year period does not lapse.
2020 Case Law regarding Retroactive Child Support: Smith v Gulka
In the case of Smith v. Gulka, the parties were not married but lived together for 6 years. Following the breakdown of the relationship in 2008, the children resided primarily with the mother. However, in 2017 the parenting arrangements shifted with the children residing primarily with the father at various times. During this period, the parties were unable to agree on exactly how parenting time was divided. The mother eventually remarried and her new partner earned an income much higher than the father’s income. The father then argued that since the mother’s new partner earned such a high income, the children were financially supported and thus he was not obligated to pay child support in accordance with the Federal Child Support Guidelines. The Justice determined that while it was true that the children did benefit from the mother’s new husband’s income, he was not financially obligated to provide for the children and that his financial involvement in their lives did not mitigate the need for their father to pay child support. As such, the father was ordered to pay retroactive child support over time with the option, if the parties were agreeable, for a retroactive lump sum payment.