The principles on Canadian and British Columbia retroactive child support have been recently established by the Supreme Court of Canada in the 2006 case of D.B.S. v. S.R.G. et al. which states that the Court should take a holistic view of the matter and decide each case on the basis of particular facts as follows:

            1.         The payor parent’s interest in certainty must be balanced with the need for fairness to the child and for flexibility.

            2.         Consideration shall be given to the recipient parent’s reason for delay in seeking child support.

            3.         The Courts look at the conduct of the payor parent.

            4.         Past and present circumstances of the child, including the child’s needs at the time the support should have been paid.

            5.         Whether a retroactive aware might entail hardship. 

Most importantly, the date of the retroactive aware should be to the date of effective notice by the recipient parent that child support should be paid or increased but to no more than three years in the past.  Effective notice does not require the recipient parent to take legal action; all that is required is that the topic be broached.  Once that has occurred, the payor parent can no longer assume that the status quo is fair.  However, where the payor parent has engaged in blameworthy conduct, the date when the circumstances change materially, will be the presumptive start date of the award.

Few non-custodial parents know it, but they too can be eligible for Child Tax Benefit Credits under certain conditions. According to Canada Customs and Revenue Agency’s website (http://www.ccra-adrc.gc.ca), the Child Tax Credit is defined as follows:

The CCTB is a non-taxable amount paid monthly to help eligible families with the cost of raising children under the age of 18.

Included in the CCTB is the National Child Benefit Supplement (NCBS), a monthly benefit for low-income families with children. The NCBS is the Government of Canada's contribution to the National Child Benefit (NCB), a joint initiative of federal, provincial, and territorial governments.

BC Child support guideline payments will change as Federal Amendments to the Canadian and BC Child Support Guidelines will come into effect on May 1, 2006 in British Columbia for BC child support payments and across Canada and will change to increase payment amounts for BC Child Support payments.

A two pronged definition for BC Child Support extraordinary expenses has also been added given disputes that have arisen over when these expenses should be paid on top of basic BC Child support guideline amounts.

First, in accordance with paragraph 7(1.1)(a), expenses are extraordinary if they "exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover." This is determined having regard to the income of the requesting spouse as well as any child support received.

Where paragraph 7(1.1)(a) does not apply (where the expense does not exceed the amount that the requesting spouse can reasonably cover), the second part of the definition, set out in paragraph 7(1.1)(b), applies. Paragraph 7(1.1)(b) directs courts to determine whether the expenses are extraordinary having regard to five factors, as follows:

• the amount of the expense in relation to the income of the spouse requesting the amount (including the child support amount);
• the nature and number of the educational programs and extracurricular activities;
• any special needs and talents of the child or children;
• the overall costs of the programs and activities; and
• any other similar factor that the court considers relevant.

Section 20 concerning non-residents has also been amended.  Section 20 has been amended to allow the court to reduce income for non-resident payors who pay higher taxes than residents of Canada.

FEDERAL GOVERNMENT UPDATES CHILD SUPPORT TABLE AMOUNTS TO REFLECT CHANGE TO INCOME TAX SINCE 1997

It was recommended that the Federal Child Support Tables should be amended every five years or earlier. They should also be amended on an ad hoc basis with the agreement of the provinces and territories if there is a significant change in taxation or other parameters.

The recalculated child support amounts use the 2004 federal, provincial and territorial tax parameters and structures (most recent available). When compared with the published tables, the updated tables show a substantial impact on some of the support amounts due to some notable changes to taxation regimes in most jurisdictions since 1996/1997.

We provide the following comparisons of old table amounts to May 1, 2006 amounts:

Children                   Income                              Old Amount                     New Amount
     1                         $50,000                                  $426                                 $465
     3                         $50,000                                  $911                                 $994
     1                         $75,000                                  $602                                 $698
     3                        $75,000                                 $1,272                              $1,459
     1                        $100,000                                 $761                                 $906
     3                        $100,000                               $1,592                              $1,875
     1                        $150,000                               $1,079                              $1,302
     3                        $150,000                               $2,228                              $2,668

As can be seen from the comparisons, the increases are substantial.  In some cases, the increase is higher than 20%.  One must question if the tax rate changes from 1997 to present justify such an increase and one must also consider that salaries will have likely also risen from 1997 to the present which will also lead to an increased child support payment.

To read more about the changes to the Guidelines, please see the attached link to the new Child Support Guideline amendments:

http://canadagazette.gc.ca/partI/2005/20051029/html/regle4-e.html

In a child support judgment rendered on November 10, 2005 in Contino v. Leonelli-Contino, the Supreme Court of Canada has addressed the calculation of child support under the Child Support Guidelines in shared parenting situations. This decision is now the leading child support case in Canada and for BC child support in shared custody cases and will affect British Columbia child support cases for years to come.  Earlier British Columbia Court of appeal child support and shared custody cases notably Green applied a similar approach.

Lorne MacLean successfully obtains a complete retroactive correction of BC child support arrears and cancellation of all FMEP enforcement proceedings in Nanaimo BC on September 14, 2005.  Mr. MacLean's client S.M.'s response to this victory was to say "Lorne MacLean is an amazing lawyer".  If you have a BC child support case raising either present or past payment issues call Mr. MacLean immediately.

Feel free to use our free BC Child Support Calculator to calculate British Columbia child support guidelines payments.

BC family law practitioners have come to believe that the courts will almost routinely allow for a retroactive child support correction in cases where a payor’s income has increased on an annual basis from the amount that was originally used to calculate the child support obligation.

However, it is now critical that family law lawyers in British Columbia and across Canada draft separation agreements and court orders in a way to provide for an automatic annual review. This review should also provide for a backdated correction of the child support payments once the payor’s new income has been disclosed. Failure to provide a mechanism for an automatic review annually and enforceable provisions to obtain disclosure can result in disaster for the recipient spouse and the child who is dependent upon that child support. Just as importantly, BC family lawyers who fail to provide for the annual review and mandatory disclosure may well face negligence claims by their clients.

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