More often than not when a couple separates and child support is payable from one person to the other, a condition of either their Divorce Order or Separation Agreement will require that the payor parent provide the payee parent (or the Director of Maintenance Enforcement Office) copies of their yearly tax returns.
Both Child Support and Special Expenses are calculated based upon income of the payor parent and if there is a change in such income, the Child Support payable and/or Special Expenses will also change.
It is important for both parties to monitor any change in income and it is especially important for the payee parent to ensure that the proper tax documents are being provided. While there is provincial legislation which allows for a nominal increase to the amount of support owed in the event that tax information is not provided, it is the responsibility of both parents to monitor the situation.
Should the payor parent not provide their income information, it is possible for the payee parent to make a claim for Retroactive Child Support.
It is important to keep in mind that Child Support is for the benefit of the Child as was held in the leading Supreme Court Case on Retroactive Child Support D.B.S. v. S.R.G,  2 SCR 231, at paragraph 60:
“60. No child support analysis should ever lose sight of the fact that support is the right of the child.
“Where one or both parents fail to vigilantly monitor child support payment amounts, the child should not be left to suffer without a remedy…
The case of D.B.S. v. S.R.G, supra further held at paragraph 54:
“54. Parents have an obligation to support their children in a way that is commensurate with their income. This parental obligation, like the children’s concomitant right to support, exists independently of any statute or court order. …
“The total amount of child support owed will generally fluctuate based on the payor parent’s income. Thus, under the federal scheme, a payor parent who does not increase his/her child support payments to correspond with his/her income will not have fulfilled his/her obligation to his/her children.”
D.B.S. v. S.R.G, supra, provides lower courts the following guidelines and factors when determining whether a Retroactive Child Support should be awarded:
- Did the payee have a reasonable excuse for failing to file the variation application in a more expeditious fashion?
- Did the payor engage in blameworthy conduct?
- What are the child’s circumstances and will a retroactive order benefit him/her?; and
- Will the payor experience hardship if a retroactive award is granted?
It is advisable that if you are a payor parent that you be forthright and provide all tax documents you are required to with respect to Child Support and/or Special Expenses. It is possible for a Court to award a retroactive child support amount that reflects your true income over a period of potentially three years or more depending on the circumstances.
Likewise, as a payee parent it is important to monitor any changes or developments in the payor’s income and to ensure that the payor’s tax documents are being provided accordingly.
Lawyers at Key Murray Law who specialize in the areas of family law would be happy to answer any questions you may have with respect to Retroactive Child Support.
Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.