Retroactive Child Support Payments
Did you obtain a court order for your ex to pay child support in British Columbia? Is your ex still finding ways to avoid child support payments? Does your ex owe you retroactive child support payments? Is your ex intentionally under-employed? Is your ex seeking to vary or terminate a child support order?
A recent decision Garman v. Rahmanifar, 2018 BCSC 1876, is a good reminder of how you can ensure that your children receive the child support payments they are entitled to.
In this case, the parties were in a 12-year relationship. At the time of trial, Ms. Garman was 50 years old, Mr. Rahmanifar was 57 years old and their children were 19 and 17. This was a very acrimonious relationship and the parties have been litigating for about 15 years. The parties had a shared parenting arrangement in 2010, but overtime both children moved in full-time with Ms. Garman. By 2008, Mr. Rahmanifar already owed Ms. Garman $22,745 in child support payments. In 2016, Ms. Garman filed an application for orders including child support, change in primary residence of the children to Ms. Garman, payment of child support arrears of $12,000, an order that Mr. Rahmanifar pay retroactive child support from 2012 to present in accordance with his true income, and an order that Mr. Rahmanifar pay retroactive child support in accordance with the true living arrangements of the children since 2014, when they moved in full-time with Ms. Garman.
In 2016, the parties settled various issues, but the parties could not come to an agreement on retroactive child support related to the change in living circumstances of the children. Further in 2017, Mr. Rahmanifar suffered two strokes, and argued that his condition amounted to a change in circumstances which justified termination of child support.
The court had to determine a number of issues such as:
- Whether retroactive child support was appropriate;
- If so, how far back child support should be extended;
- Has there been a material change in circumstances in respect to Mr. Rahmanifar? and
- Should any part of the child support order be secured?
The court reiterated a number of fundamental principles regarding child support:
- a parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth;
- parents have a joint and ongoing legal obligation to support their children in a way that is commensurate to their income;
- child support is the right of the child, not of the parent seeking support on the child’s behalf;
- support payments are based on earning capacity and not just on what a parent actually earns;
- as a result, a parent has a legal obligation to earn as much as he or she is reasonably capable of earning so the children can receive an appropriate level of support; and
- a parent does not fulfil his/her obligation to his/her children if (s)he does not increase child support payments when his/her income increases significantly.
To determine whether a retroactive child support award is appropriate in each case, the court takes into account the following factors:
- Whether there was a reasonable excuse for the recipient parent failing to make an earlier request for support, or variation;
- The conduct of the payor parent;
- The circumstances of the children; and
- Any hardship occasioned by a retroactive award.
In this case, the court ruled that a retroactive award was appropriate because Mr. Rahmanifar refused to keep up with his child support obligations, failed to comply with other court orders, the children suffered hardship, and Mr. Rahmanifar had the potential to earn more income.
The court further confirmed that retroactive support is generally limited to a date no more than three years before formal notice was given. However, the court took into account the period during which Mr. Rahmanifar had stroke and was not able to earn income. The child support payments were suspended for that period. Thereafter, Mr. Rahmanifar’s health had improved and the court fixed his income at $15,000 for child support purposes.
Since Mr. Rahmanifar had a history of avoiding child support payments, the court considered s. 12 of the Federal Child Support Guidelines which reads:
12 The court may require in the child support order that the amount payable under the order be paid or secured, or paid and secured, in the manner specified in the order.
Due to Mr. Rahmanifar’s past performance and history of arrears with respect to support payments, the court determined there was a real possibility that Ms. Garman would not receive the amount in the order. Therefore, the court found it appropriate to order security for the retroactive child support amount. His retroactive child support was to be secured as a charge against his property, or other security which Ms. Garman was prepared to accept.
If you need a lawyer to assist with a family litigation matter, give the goodfirm Vancouver Family Lawyers a call at 604.264.5550 to set up a free consultation.