How Can I Get BC Retroactive Child Support? A BC Family Lawyer Can Help

Every BC Divorce Lawyer knows that BC Retroactive Child Support is a complex and controversial issue. Everyone knows that child support is right of the child. So if a parent does not pay child support, the child is presumed to suffer financially as a result. However, in some situations, the parent who is owed BC Retroactive Child Support does not try to enforce or ask for it for many years. This could mean that the payor parent would unfairly suffer as a result of a huge BC Retroactive Child Support bill. Let’s see how we can resolve claims for retroactive child support in British Columbia.

What is BC Retroactive Child Support?

Retroactive child support in British Columbia is past child support owing to a parent which has not yet been paid. Child support is often paid on a monthly basis. Retroactive child support is child support calculated based on missed or under-payed child support for the previous months or years of a child’s life.

Entitlement to retroactive child support arises in 2 main situations:

1. The recipient parent does not seek or ask for child support for a long time;
2. The recipient parent asks for child support but has to wait months if not years to get a court date and obtain a court order for ongoing or retroactive child support;
3. The payor parent does not tell the recipient about his/her increase in income so child support is not ‘topped up’ or adjusted.

The Most Important Thing About BC Retroactive Child Support

The most important thing everyone needs to know about child support is this:

• every parent has a positive obligation to pay child support.
• Every parent also has a positive obligation to tell the other parent regarding an increase in his/her income so that child support can be calculated properly.

So if a parent argues “oh well, I was never asked to pay child support or increase it”, they will likely be dead in the water in court because again, child support is the right of the child and every attempt should be made to pay it; and properly.

YLaw’s child support lawyers were recently successful in a case relating to retroactive child support. The payor said “well, she didn’t ask me about my current income and didn’t ask that I increase it. So too bad so sad”. The judge said:

[79]        The settlement order itself contemplated that child support could be reviewed and adjusted in accordance with changes in the parties’ financial positions.  While it did not impose a contractual obligation on Mr. Frederickson to disclose changes in his income until asked, that did not absolve him of his paternal obligations in light of a change in circumstances as pronounced as that which occurred in 2014, particularly given the circumstances of B (the third factor).  Ms. Wright’s failure to divine the changes in his income and request disclosure earlier does not relieve him of those obligations.

[80]        In these circumstances, Mr. Frederickson’s duty to his children was to pay the proper Guideline amount, notwithstanding his agreement with their mother.  His failure to do so after February 1, 2014, I find, constitutes blameworthy conduct as discussed in DBS.

But Wait, If you Wait Too Long You May Not Get Retroactive Child Support

BC Retroactive Child Support my accumulate to hundreds of thousands of dollars if left unaddressed. So if you do not ask for child support on time and wait for many years before requesting it, the judge may not award it or may award a lot less in retroactive child support than you are owed. This is because waiting and not saying anything, and then asking for a huge lump sum amount may make the other parent go bankrupt or cause extreme financial hardship all of the sudden.

How to Resolve Retroactive Child Support Issues?

The leading BC Court of Appeal case of Green v. Green, explained the factors the court will consider in seeing whether a BC Retroactive Child Support award is appropriate and should be paid. These factors are:

1. whether there was a reasonable excuse for the recipient parent failing to enforce child support; this means, did you have depression or no money to go to court to get the payor to pay? Or were you just lazy?
2. the conduct of the payor parent; did the payor parent try to make at least some payments or did he/she just disappear and let you and the child suffer?
3. the circumstances of the children; are the children now living in poverty because of lack of child support or are they doing fine?
4. any hardship occasioned by a retroactive award. How much have you had to go in debt to support your children? or will the payor have the amount of retroactive support to pay you or will he/she go bankrupt if ordered to pay the whole amount?

Let’s Have a Closer Look at Each Factor for BC Retroactive Child  Support:

1. whether there was a reasonable excuse for the recipient parent failing to make an earlier request for BC Retroactive Child support

Please note that it is actually the payor’s obligation to ensure the recipient is up to date with the payor’s financial circumstances. It is not fair to expect the recipient to constantly inquire about the payor’s income. When parents separate, they just want to move on and sometimes minimize contact. Since BC child support is the right of the child, both parents have the obligation to be truthful and transparent with their finances.

It is always good to exchange tax information each year to ensure child support up to date. Many agreements or court orders relating to child support have clauses about exchanging tax information and adjusting child support based on updated incomes.

The most common information to be exchanged are:

• T1 General Tax Returns;
• Notice of Assessments;
• T2 Corporate statements in case there are corporations involved;
• Latest paystub;
• Letter of employment if new employment is obtained;

2. The conduct of the payor parent;

Here it is important to decide whether the conduct of the payor parent was ‘blameworthy’ in not paying back child support. Blameworthy conduct means the payor:

• knowingly did not disclose his/her increased income for child support,
• refused to pay the proper BC child support amount,
• intimidated the recipient,
• bullied the recipient, or
• put the recipient or the child through undue hardship by not paying child support.

3. The circumstances of the children

Did the children suffer as a result of your ex-spouse not paying child support? Usually, the courts say that children are entitled to the same standard of living they enjoyed during the relationship. So saying that the children did not suffer as a result of you not paying BC retroactive child support is not always a good excuse. But let’s say you didn’t pay child support for many years and now the kids are 30 years old and self-sufficient. The judge may forgive some of the back child support payments because the kids may no longer need support.

4. Hardship Occasioned by a Back Child Support Award

If you do not pay for a long time, you will be faced with a big bill and you may not be able to pay it all at once. For this reason, the courts usually do a payment plan and ask the payor to pay the back child support in installments. They cal also forgive a portion of it or say too bad so sad, come up with a way to pay the entire amount or sell your house, etc.

Enforcing BC Retroactive Child Support Through Family Maintenance

The BC Family Maintenance and Enforcement Program is a free governmental service that will assist parents who are owed BC retroactive child support. However, you first need a court order or a written agreement before you can engage FMEP. Once you register your court order or written agreement with FMEP, this program will go after the non-paying parent and has many powers including but not limited to:

1. Taking away his/her passport and driver’s license;
2. Garnishing his/her wages;
3. Confiscating his/her assets;
4. Putting liens on his/her house;
5. Taking him/her to jail and possibly putting him/her in jail.

Sometimes the payor may try to change or cancel BC Retroactive Child Support. To learn more, click here.

The above factors are NOT the only factors the court will consider and FMEP is not the only way to enforce child support. The issue of BC Retroactive Child Support is a complicated one. 

Contact our Top-Rated Vancouver Family Lawyers* for an INITIAL CONSULTATION at 604-974-9529 or get in touch. 

*Leena Yousefi was chosen as one of the top 25 most influential lawyers in Canada. . YLaw has been voted as the best Vancouver family law firm in Vancouver by Top Choice Awards. 

This blog was updated in September of 2018 for more accuracy, comprehensiveness and freshness.