on the Costs of Marriage Breakdown Tam a lawyer who is taking an appeal about retcoactive child support co the Alberta Court of Appeal. Ie-will be heard ae the beginning of May 2004, and Iwill report back to you in this ‘magazine after the judgment has been handed down. Today I want to give you some back ground about the questions of retroactive child suppor. + Does each payer of child support have a duty tobe aware of the existence ofthe fed- eral Child Support Guidelines? + Must each payer ger acquainted with the Guidelines and pay the Guideline amount of child support without che other parent having to take the payer to cour’? + Should a payer who has not paid child sup port or who has avoided paying the (Guideline amount for many yeas be let off scottfree or be ordered to pay retronctve child suppore? + Conversely, should a payer be abe to reduce his ot her monthly child support recroactvely ie turns out he or she wat ‘overpaying for some time? ook forward to finding our how the Alberta Court of Appeal will answer the fine three ofthese questions. In this article, how- ever, I wort go into the Final question of payers sccking a retroactive reduction in child support to cancel out accumulated areas, ‘There is no dispute that froun che very day child is born, cach parent has an obligation tm provide financial support fr chat child ‘Also, child support is che right of the child, and no parent can give up or bargain away a child tight co child support, Courts acknow ‘edge these principles even when they then go ‘on 0 refuse to order retroactive child support. Some of the reazons given by courts in the laseewenty years for refusing to onder retroac- five child support ace a follows: + theaward of money will bea “windlall” for the recipient parent, who will not spend the money on the childs needs ntl quite recent te on time courts would order retroactive child support was won the payer was blameworty, or example, trough deliberate unemployment AUGUST/ SEPTEMBER 2004 Gordon ANDREIUK + the recipient parent did not have to go into debt or encroach on capieal asa result ofthe payers failure in che past co pay an appropriate amount of child sup. por + ifproperey or spousal support ae also ‘issues, lump-sum retroactive child sup- port may actualy be redistribution of property or spousal support in disguise; + the recipienr parene waited too long 0 enforce the child support obligation, +a here was an order in place, the payer should be able to rely on that order even ii was a ridiculously low onder 4+ the payers enticld to asrange his or her financial affairs based on the existing order or arrangement + icis unfie to impose an obligation now for period the payer “reasonably thought had passes + aretroative order would impose hard ship on the payer + the payerad no notice ofthe claim for ctild suppor until the coure application LawNow 21MILLER BOILEAU eae aa LAW GROUP Registered Family Mediators Registered Collaborative Family Lawyers 11838 - 102 Avenue Edmonton, Alberta TSK OR6 Tel: (780) 482-2888 Fax: (780) 482-4600 www.millerboileau.com Itisimpossibve to stip a person of bis or her subjectivity, especialy about 2 contentious isue ke retroactive child suppor. n court, we cali discretion, was fled, eve if earlier there had been informal demands or negotiation; and + very recently, the Ontario Coure of App in its decisions of Wald and Marinangeli stated chat unless specifically ordered to do so ealiet, the payer has no legal obligation to disclose changes in income instead, the ‘onus is on the recipient to chase down the payer for information, and subsequently force through a variation of child suppor. Unxil quite recently, che only time courts would order retroactive child support was when the payer was blameworthy, for example, through deliberate unemploymen, delay tace fics, or incomplete of misleading financial disclosure, But blameworthiness was always balanced against the reasons oF factors for not cotdering reroactve child suppor. The blame worthiness had 0 be prety’ serous before reuroactive support would be ordered. The rule ser out by the Alberta Court of Appeal inthe Tanuary 2000 case of Enmicis that suppore is ‘normally retroactive only to the date of filing of the application. Only in “exceptional cir cumstances” would support be ordered back beyond chat date, ‘The threshold of “exceptional circum stances” yas somewhat lowered by the Alberta Court of Appeal inthe two 2001 decisions of Hunt and Whitton. Tete the Court of Appeal stated the threshold i “appropriate cicum stances.” That is ill a very lose threshold and 22 LawNow ‘open ro wide interpretation depending on the individual justice in the court hearing the application on the day you ate presenting i. Face i, justices are people like you and me, and any decision they make is based in part ‘on subjectivity. [is imposible co sip a person of his or her subjectivity especially about a contentious iss like retroactive child support, In court, we callie discretion, Quite ecemty some lower cour justices have awarded substan 3 reoactve child sup por in cases where thee or four yeas eat, ‘none would have been ordered, I have done the side-by-side comparisons to allow me to make chs acement. These orders are based on the 1997 Child Support Guideline objectives andthe practial side ofthe Guidelines: + the Guidelines are relatively simple, ‘widely accesible, and known to the publics + since the coming of the Guidelines, and the public education campaign that accompanied them, its extremely hard for a payer to claim to be surprised by a claim For retroactive child suppor and 4 the payer shares responsibility with the recipient ro make sur chat appropriace child support is being pe thae is, here should be no more ofthe catch me ifm can mentality Unt Patioment amends the Guidelines to eal withthe question of evoactiiy appeal cour in each previnee, or even eventually the Supreme Court of Canada, will make up the rules as wo go along AUGUST/SEPTEMBER 2004 Consistency and standards are guiding principles in the Guidelines. Therefore, justices have erally no dsereton oor future, or ongoing, eile suppor. The objectives ofthe Guidelines are + tocsablih a fair standard of suppor for children thar ensures char they continue to beneficfeom the financial means of both spouses afer separation; + to reduce conflict and tension berween spouses by making che ealeuation of child support orders more objective: + oimprove the efficiency ofthe legal process by giving courts and spouses guid he level of child suppore orders and encouraging setelement: and +o ensure consistent treatment of spouses anid childeen who are in similar cream Consistency and standards are guiding principles inthe Guidlines. Therefor, justices have literally no discretion over fature, oF ‘ongoing, child support, They must by lve oder che amount of child support presribed by the Guidelines, However, fr retroactive child support, the state ofthe cae law right row is that justices still have very wide disere ‘ion, And that leads to differences i treatment of children based on the subjective opinion of the individual justice about retroactive sup port The Guidelines do not explicidy state that hey apply co retroactive child support, and there lies the dispute over retroactivity. Until, Pisliamene amends the Guidelines to deal with the question of retroactivity, appeal courts in cach province, or even eventually the Supreme Court of Canada, will make up the rules as we go along. As Thad mentioned above, the (Ontario Court of Appeal has recently sated that unless specifically ordered carlin payers hhave no obligation to disclose changes in income. Taken one step further, they have no responsibility 0 make sure amount of child support is being paid, the ‘onus is completly on the recipient. La see whether the Alberta Coust of Appeal will find otherwise «the correct Gordon Andreuk is a lawyer with the Laurier Law Group in Edmonton, Alberta,