In Canada, child support is the right of the child. As such, every effort should be made to ensure that payor parents meet their obligation to provide proper support for the children. A support regime which awards parents for successfully avoiding prior support obligations runs contrary to the general concept of child support. Courts should therefore intervene in order to address previous inadequate support. Our Calgary based lawyers provide information on retroactive child support and how the courts enforce child support in Alberta.
How To Determine Retroactive Child Support
The largest single issue in determining retroactive child support centres on the length of time for which retroactive child support may be ordered. The Supreme Court of Canada adopted the concept of “effective notice” as the date for calculating retroactive child support. This is the date when a payor parent was made aware that the recipient was seeking a change to child support. Furthermore, as a general rule, support should not be ordered for a period greater than three years in the absence of blameworthy conduct on the part of the payor. Blameworthy conduct is a situation where a parent knowingly avoids or diminishes his/ her support obligation to his/ her children. This would include situations where a payor knows that the support being paid is inadequate or that the support being paid is less than what would otherwise be required under the guidelines.
How Does The Court Role On Retroactive Child Support?
A court will also look at the circumstances for the delay in seeking child support. An unreasonable delay on the part of the recipient spouse could shorten the potential period of time for which retroactive support may be claimed. The court will, however, ignore a delay in seeking support if there is a reasonable excuse. Such reasons would include situations where a recipient parent lacked the financial or emotional means to bring an application, was given inadequate legal advice, or where the parent harbours justifiable fears that the payor parent will react vindictively.
What If Circumstances Change?
Although the Supreme Court of Canada did not state that a payor has a statutory obligation to disclose a change in income, the failure to do so may be considered “blameworthy conduct” which could justify a retroactive support award. Accordingly, it would be prudent for you to disclose your income information on an annual basis to attempt to minimize any future retroactive support claim. As well, the Supreme Court of Canada indicated that, where a payor provides voluntary financial assistance for the children in addition to regular child support, this is a relevant factor in lowering a potential retroactive support claim.
If you think you are entitled to retroactive child support, set up an initial consultation with on of our friendly and informative lawyers.
Disclaimer: The content provided in the blog posts of Jones Divorce & Family Law is general information and should not be considered legal advice. Please contact a lawyer for legal advice tailored to your specific situation. All articles are current as of their original publication date.