Retroactive child support granted despite a Separation Agreement – Vancouver Family Lawyers

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Have you signed a separation agreement? Are you a parent who is now seeking retroactive child support payments and s. 7 expenses? Are you uncertain whether you can bring a claim to vary the terms of your separation agreement?

The Goodfirm

The Goodfirm Vancouver lawyers can assist you with varying orders and challenging family agreements at the Supreme Court of British Columbia. Signing a separation agreement alone does not prevent you from seeking legal recourse. The court has jurisdiction to vary the terms of an agreement or set it aside in its entirety. For instance, pursuant to s. 148(3) of the BC’s Family Law Act, the court can set aside all or part of the separation agreement in relation to child support. Alternatively, a separation agreement may provide a review clause, which could permit either party to bring a court application to vary the agreement after passage of time, or if there is a “material change in circumstances.”

 

Retroactive Child Support and Separation Agreements

In a recent decision, Block v. Block 2018 BCSC 716, the Honourable Mr. Justice Punnett considered the following factors in determining whether retroactive child support and s. 7 payments were in accordance with a separation agreement:

  • conduct/blameworthiness of the father;
  • delay in bringing an application to vary the terms of the agreement by the mother;
  • circumstances of the children; and
  • hardship arising from a retroactive award.

In this case, the mother applied for retroactive prospective child support and s. 7 expenses for the parties’ twin daughters. The parties were married for 20 years. Following the breakdown of their relationship, they entered into a Separation Agreement dated December 27, 2011 (the “Agreement”). In the Agreement the parties did not address the values of their assets. Further, the parties did not comply with the Federal Child Support Guidelines and in lieu the father agreed to pay for the children’s private school expenses. The Agreement also did not contain a provision for a yearly production of financial information nor did it disclose the parties’ incomes. However, the Agreement did incorporate a right of review. The relevant provisions of the Agreement provided that the father was to pay $2,500/month for child support, reviewable in 12 months. Paragraph 15 of the Agreement further stipulated that in view of the overall settlement including payment of private school tuition by the father, the mother “abandons any claim to retroactive child support, contribution to section 7 expenses, and spousal support to date.”

The judge read the contract as a whole and interpreted paragraph 15 to mean that the mother released claims for retroactive support, s. 7 expenses and spousal support up to the date of the Agreement. He further stated that “while the comma before the word ‘and’ may indicate the contrary, the agreed upon provision for review indicates that is not the case.” Retroactive child support and s. 7 expenses were not abandoned prospectively.

The judge ordered retroactive child support and a s. 7 award up to the date when the payor father was notified of the recalculation of child support.

 

The Next Step

If you think that your separation agreement no longer represents you and/or your children’s current circumstances, do not delay. Give thegoodfirm a call and request a free consultation. You may be entitled to a number of claims.

 

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