In Alberta, children have a legal right to child support. The legal framework outlining child support in governed by the Divorce Act and Family Law Act. If parties are not able to agree on the amounts of child support the court will determine how much child support is owed. In Alberta, the Courts generally refer to the Federal Child Support Guidelines when determining how much is owed and by which party. In certain situations where spousal support has need be paid since the parties separated the payor may be obligated to pay retroactive child support. Our Calgary based family law lawyers provide insight into the law regarding retroactive child support.
How Do The Courts Determine Child Support?
The courts will look to the income and personal situation of each party when determining who will pay child support and how much they will be required to pay. They will also look to the Federal Child Support Guidelines to determine a fair support method for the children. The Federal Child Support Guidelines exist to reduce conflict by making the calculation objective, to ensure a level of consistency across families, and to make the legal process more efficient. The Guidelines do allow the court to alter the child support obligations where there is shared or split custody, if one party is experiencing an undo hardship, or if one party earns over $150,000 / year.
What Is Retroactive Child Support?
Child support is monies paid from on party to another when a separation has occurred and children are involved. The payor may be required to pay retroactive child support for a variety of reasons. For example, if the couples separated and mutually decided to withhold child support, if one party does not initially seek child support because they are intimidated by their ex and can’t afford legal representation or, if the payor has a substantial increase in income and does not adjust their support accordingly. Since child support is a legal obligation – if the courts find child support has not been paid for any reason, the payor may be required to pay retroactive support to make up for the late or missed payments.
Determining Payment of Retroactive Child Support
If the Court finds that a retroactive award is appropriate, the general rule that the Court will provide is that the award may go back to the date of effective notice by the recipient parent. That award will provide either that the amount should be paid based upon the payor’s income at that time, either paid in full (if the payor parent didn’t pay anything) or the increase of the amount paid and the increase in salary of the payor parent. Effective notice simply means that the recipient parent proposed the topic with payor parent. The Court went on to limit the retroactive claim to no more than three years in the past. The statute of limitations of three years can be set aside if the payor parent engaged in blameworthy conduct, then the date will be when the circumstances changed materially as the start date of the retroactive award.
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