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Difference between revisions of "Changing Family Law Orders, Awards and Agreements Involving Child Support"
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Changing Family Law Orders, Awards and Agreements Involving Child Support (view source)
Revision as of 00:13, 24 August 2017
, 00:13, 24 August 2017→A change in the law: D.B.S. v. S.R.G.
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The logic underlying the [http://canlii.ca/t/1p0tv court's decision] is this: | The logic underlying the [http://canlii.ca/t/1p0tv court's decision] is this: | ||
Before the Child Support Guidelines came into effect, child support was determined using budgets and a means and needs analysis looking at the ''means'' of the parents and the real or expected ''needs'' of the children. After the Guidelines came into effect on 1 May 1997, child support was expressly linked to the income of the payor, and the payor's duty became to pay support at the amount required for | Before the Child Support Guidelines came into effect, child support was determined using budgets and a means and needs analysis looking at the ''means'' of the parents and the real or expected ''needs'' of the children. After the Guidelines came into effect on 1 May 1997, child support was expressly linked to the income of the payor, and the payor's duty became to pay support at the amount required for their income, using the tables attached to the Guidelines rather than budgets and the needs-and-means analysis. As a result, the court held that a duty to pay child support — whether under a separation agreement or a court order — is never final and absolute. No orders or agreements are final on the subject of support, and both parents have the obligation of ensuring that the right amount of child support is being paid on an ongoing basis. | ||
The following is a summary of the important points in this decision. | The following is a summary of the important points in this decision. | ||
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*Both parents have a duty "to ensure that their children are receiving a proper amount of support." | *Both parents have a duty "to ensure that their children are receiving a proper amount of support." | ||
*"While the paying parent does not shoulder the burden of automatically adjusting payments" when | *"While the paying parent does not shoulder the burden of automatically adjusting payments" when their income increases, "this does not mean that (s)he will satisfy his/her child support obligation by doing nothing." | ||
*If the payor's income increases and child support does not, "there will remain an unfulfilled obligation" that could warrant a retroactive award of support. | *If the payor's income increases and child support does not, "there will remain an unfulfilled obligation" that could warrant a retroactive award of support. | ||
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*"It will be easier to show that a retroactive award causes undue hardship" than it is to show that a normal child support order causes undue hardship. | *"It will be easier to show that a retroactive award causes undue hardship" than it is to show that a normal child support order causes undue hardship. | ||
*A court "should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case." | *A court "should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case." | ||
*In other words, retroactive support may be awarded whenever a payor is paying less than the Child Support Guidelines requires, if | *In other words, retroactive support may be awarded whenever a payor is paying less than the Child Support Guidelines requires, if their financial circumstances change following the making of an order or agreement dealing with child support. In making such an order, the court must consider: | ||
*#any excuse for the recipient’s delay in seeking an increase in support, | *#any excuse for the recipient’s delay in seeking an increase in support, | ||
*#any blameworthy conduct on the party of the payor, | *#any blameworthy conduct on the party of the payor, | ||
