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Can You Get Child Support from Your Ex After 50 Years in Ontario?

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Can You Get Child Support from Your Ex After 50 Years in Ontario?

Multiple reports of a 74-year-old California mother getting $150,000 in child support owed to her from 50 years ago are hitting the headlines.

CNN reports:

“Toni Anderson married Don Lenhert in 1966, but the couple split two years later.

During the divorce proceeding in mid-1970, the judge ordered Lenhert to pay child support for their 3-year-old daughter Lane, consisting of monthly payments of $210 for the first 2½ years, and then dropping down to $160 per month until Lane turned 18.

The order commenced January 1, 1971.

But Lenhert never paid.

Those monthly payments comprise a principal of about $30,000, Anderson said, and with a 10% interest rate, he owes her $150,000.

“The first check bounced and then he went off to Canada with his girlfriend and had two more kids. He completely disappeared,” Anderson said.

Last year, Anderson realized there’s no statute of limitations for child support payments in California.

She Googled her ex-husband’s name and, she said, found photos of him living what appeared to be a financially sound life in Oregon, with a big house and a boat.

She filed a motion to ask for unpaid child support. Last month, she made her case in court. The judge granted her request.”

Does this sound fair to you?

Some would argue that the mother should have taken steps earlier to enforce support order and it is too prejudicial to require the father to pay now after 50 years. The child is an adult now so the $150,000 amounts to a windfall for the mother.

Others could properly point out that an Order is an Order, not a suggestion and the father should have complied 50 years ago, and any prejudice now is the result of his own misconduct.

Could this happen in Ontario?

As we have written previously the leading case in Canada for child support and retractive support awards is the Supreme Court of Canada’s decision in D.B.S.

If the claim for child support is made for the first time when the “child” is an independent adult, then the short answer is no. Child support is for children of the marriage, not adults who used to have that status.

If the basis of the retroactive claim is valid separation agreement or court order, then the answer would likely be yes. But each case is unique, and the court sets out several factors to consider in determining retroactive awards including, proper and timely financial disclosure, delay in seeking enforcement by the recipient and blameworthy conduct of the support payor.

At Russell Alexander Collaborative Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

To Get Retroactive Support, Does a Kid Have to be Eligible at Now … or Only Back Then?

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To Get Retroactive Support, Does a Kid Have to be Eligible at Now … or Only Back Then?

A recent Ontario case highlights an interesting “timing” conundrum in Family Law: when a parent applies for retroactive child support, does it matter that the child over 18 when the application is made? Or does that make the child ineligible for support?

And what if it’s a motion to retroactively change existing support levels?

The law on this point was canvassed in the recent case of P.M.B. v. A.R.C.-A. The mother wanted support to cover a period when the child was 18 and attending school full-time. However, on the date of her application, the child was 19 and no longer attending school. She asked the court to order child support that was retroactive (i.e. effectively “back-dated”) to cover the child’s eligible period.

In considering that claim, the court resorted to the principles set out in a well-known Supreme Court of Canada decision in D.B.S. v. S.R.G., where the court set out the factors that family courts should take into account in detailing with such retroactive applications.

That higher Court had confirmed the general principle (known as the “D.B.S. rule”), that a claim for retroactive support cannot be made unless the child is eligible for support at the time the application is made. As the court in P.M.B. v. A.R.C.-A. put it: “Child support is for children of the marriage, not adults who used to have that status.”

(But this principle comes with a caveat, because the standards and thresholds for what makes a child eligible for support are slightly different under the provincial Family Law Act versus the federal Divorce Act. Also, other established factors that need to be examined, such as the reason for the parent’s delay in applying, the conduct of the paying parent, the circumstances of the child, and the hardship that such an award may entail. In short: Child support eligibility is a complicated legal issue).

However – as with all rules – there are some exceptions. The D.B.S. rule will usually be found not to apply in cases where:

• There is an existing order in place (and an established support obligation under either the Divorce Act or the Family Law Act) and a motion is being brought to change it retroactively;

• A party has engaged in blameworthy conduct (for example where the support recipients have been thwarted or blocked from pursuing a motion to vary support because of some misconduct by the paying parent); or

• The paying parent has failed to disclose income increases to the recipient parent, in a manner that the court considers blameworthy.

Ultimately, and after considering all of these principles, the court in P.M.B. v. A.R.C.-A. decided to stray from the usual D.B.S. rule, for various circumstantial reasons. These included: a) the existence of an oral agreement for child support; b) the fact that two of the three children were still under age and eligible for support when the retroactive support order was being made; and c) because the father had been fully aware of his support obligation – and the fact that he was not meeting it – all along.

For the full text of the decision, see:

P.M.B. v. A.R.C.-A., 2015 ONCJ 720 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Back-Dating Child Support – A Kids’ “Bill of Rights”

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Back-Dating Child Support – A Kids’ “Bill of Rights”

Sometimes separated or divorcing parents must return to court to ask a judge to effectively adjust and “back-date” (so to speak) a previous child support order, in order to take into account certain factors that were in existence at the time the original order was made, but came to light only afterwards.

This is what is known as “retroactive” child support order; it strives to address in the present, those circumstances that existed in the past. For example, if the court originally made a child support order based on incorrect assumptions as to the paying parent’s income level, and it is later revealed that his or her income was higher during that time relevant period, then the court may see fit to make an order today, that more accurately reflects the parent’s past child support obligations for that period. Technically the term “retroactive” is a misnomer; the court is merely being asked after-the-fact to calculate afresh what the support should have been if the correct figures were being used at the time.

However, the exercise is not as simple as it may seem. Numerous principles are at play, and these were comprehensively considered by the Supreme Court of Canada in a prominent case called D.B.S. v. S.R.G.; L.J.W. v. T.A.R; Henry v. Henry; Hiemstra v. Hiemstra.

There, the Court set out a list of factors to be considered whenever a parent is asking for retroactive child support, for a retroactive increase or decrease, or for child support arrears to be rescinded. When stripped of the legalese, it amounts to a sort of “Kids’ Bill of Rights” in connection with retroactive child support. The Supreme Court of Canada said:

• Child support is the right of the child that arises upon the child’s birth.

• It exists independent of any statute or court order; it also survives the breakdown of the parents’ relationship.

• Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together.

• The amount of child support owed will vary based upon the income of the support-paying parent.

• The child support analysis must not lose sight of the fact that child support is the right of the child. Accordingly, the child should not be left to suffer if one or both parents fail to monitor child support payments vigilantly.

• Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it.

• Any incentives for paying parent to be deficient in meeting his or her child support obligations should be eliminated.

• The specific amounts of child support owed will vary based upon the income of the paying parent. However, as that income levels increases or decreases, so will the parent’s contributions to the needs of the child.

For the full text of the decision, see:

D.B.S. v. S.R.G.; L.J.W. v. T.A.R; Henry v. Henry; Hiemstra v. Hiemstra, [2006] S.C.J. No. 37 (S.C.C.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

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