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Avoid retroactive support orders by providing timely disclosure

When it comes to child support payments, both parties are well-advised to follow their s. 25 obligations under the Federal Child Support Guidelines, Toronto family lawyer Deborah Clarke tells

“I’ve been dealing with some files where no adjustment in payments have been made for years,” says Clarke, associate with Stanchieri Family Law. “I think there’s some confusion about the requirement to provide financial information — and where some payor spouses may think they’re meeting their support obligations, so there’s no need to negotiate any further.”

She says what typically happens is the payor’s income may have changed in the years following the support order, yet the payment amount stays the same because no one has been adjusting them.

Under s. 25 of the guidelines, payor spouses must — no more than once a year on the written request of the recipient spouse or the order assignee — provide financial disclosure within 30 days after the request’s receipt if the spouse resides in Canada.

“This section places the onus on the support recipient to seek financial disclosure in writing. Once they receive that information, then he or she may say to the payor that the amount should be changed according to the guidelines. Then it’s a matter of figuring out what the appropriate new amount should be,” says Clarke.

“In cases where parties are unable to resolve it between themselves — whether it be direct or with counsel trying to negotiate a new amount — then the parties may go back to court on a motion to change and have a judge look at the situation to figure out what the appropriate adjustments should be," she adds.

Difficulties arise when no formal request has been made for financial disclosure, Clarke says, noting one recent case where a support recipient was seeking retroactive support going back a decade.

“For nearly 10 years, the support recipient failed to make a formal request, and neither party took any active steps to do anything about it,” Clarke says. “Now the support payor is potentially facing a substantial retroactive award because there was no adjustment.”

Clarke says these matters are usually analyzed through a 2006 Supreme Court of Canada (SCC) decision, where the court laid out a number of factors in determining whether to make a retroactive award, including the reason for the recipient parent’s delay in seeking child support, the conduct of the payor parent, the past and present circumstances of the child including their needs at the time the support should have been paid, and whether the award might entail hardship.

She recommends that support payors comply with the order and keep the recipient informed of any changes to income.

“Ensure that you are making your payments on time, and provide disclosure as required under the guidelines even though the recipient may not have formally requested it," Clarke says.

Support recipients should followup if any claims for retroactive adjustments haven’t occurred, she says.

“It’s important to make these requests in writing and as quickly as possible because the SCC has said that it may not be appropriate to go back further than three years,” Clarke adds.

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