Child support obligations are an important part of ensuring a child is properly cared for following a divorce or separation. Of course, a parent with an obligation to pay child support may not always fulfill those obligations. In situations such as this, the other parent can apply to the court to receive retroactive child support from the offending parent. However, as seen in a recent decision from the British Columbia Court of Appeal, the ability to successfully make this claim does come with some conditions.

Background

The mother and father began living together in 1994. They had their first child two years later. The parties separated when the child was about two-years-old. The child spent most of his time living with his mother, though he did occasionally live with the father. In 2003 the father agreed to pay child support in accordance with the Federal Child Support Guidelines, though at the time he was out of work. He requested that a permanent order be put in place once he found work. This occurred in January 2004. At this time the father was ordered to pay $393 per month for a period of three months. Following that, they were left on their own to reach an agreement, with the option of turning to the courts being available to them should such a need arise. Eventually, the parties agreed the father would continue to pay $393 per month. By 2010 the father had agreed to increase his child support payments to $450 per month, and these payments were made until the child’s 19th birthday. It was around this time that the mother filed an application seeking financial disclosure and retroactive child support (the father had not made any financial disclosure since 2004). However, the father took the position that since the child was now 19-years-old, and an adult, the mother could not make such a claim.

The trial

During the trial the judge found that while the mother had provided for the child throughout his childhood, he had not made any significant efforts to find employment since becoming an adult. Instead, he performed poorly at university and spent most of his time watching television and playing video games. The trial judge found the child had only enrolled in university at the request of his mother, with the intention of being able to continue to receive child support. However, the judge also found fault in the father’s decision not to disclose his income. Nevertheless, the judge found that the child was still technically a “child of the marriage” and ordered the father to pay child support so long as that remained the case.

On appeal

The father appealed, arguing the trial judge had no jurisdiction to hear the application since in order for there to be an order for retroactive child support, the child must still be a child of the marriage. The court’s five judges agreed with the father, though they had different reasons for doing so. The majority found that the son was not a “child” within the meaning of the Family Law Act. The party’s agreement specified the father was to pay child support until the child was no longer a child of the marriage. Since that time had passed, a new application or agreement would need to be reached.

At Borden Family Law we have been helping our clients with child support issues for over 17 years. We strive to ensure our clients’ children are well taken care of following a divorce or separation, and that their interests are protected throughout their childhood. Please call us at 905-576-6090 or reach us online to see how we can help you today. Please remember to ask about our bundled services and flat fees.