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Avoiding Surprises – Tips from a Family Law Lawyer – Part 4: Don’t Wait Too Long to Commence a Claim for Retroactive Child Support

What most lawyers know, or should know, and very few parents do know, is that with respect to claiming retroactive child support in almost all cases the parent seeking support must commence the claim before the child ceases to be eligible for child support which means, again in most cases, before the child is over 18 and finished with his or her education. The Supreme Court of Canada in a 2006 decision, known as the D.B.S. decision, stated quite clearly that, “Child support is for children of the marriage (which means, children entitled to support), not adults who used to have that status.” So the lesson is, if you want to pursue a claim for child support for a child, make sure that you commence your claim before your child becomes ineligible for support. If you don’t, you will most likely find yourself out in the cold with no chance of recovering anything from the parent who should have been paying child support for the child. The Court will probably have to say to you, I’m sorry but I can’t order him or her to pay. Not a happy result. Of course, the best way to avoid this result is to commence the claim for retroactive child support when your client is still eligible for support.

There is a slim glimmer of hope that you may, in some very limited circumstances, be able to bring a claim for retroactive child support even after the child has become ineligible to receive support. You don’t want to have to rely on this, but you should have a look at it if you find yourself caught on the wrong side of the eligibility for support line. In a case decided in December, 2015, P.M.B. v. A.R.C.-A., the Ontario Court of Justice allowed a claim for retroactive child support even though it was begun some 4 months after the child had ceased to be eligible for child support. In part the Court in this case seems to have been prepared to bend the strict rule because there had been a pre-existing oral agreement between the parents that some child support be paid (the strict rule described above has been held not to necessarily apply if the claim is for retroactive variation of an existing order for child support, as opposed to a retroactive claim for a first time child support order), and because the support paying parent had been guilty of “blameworthy conduct” by failing to disclose income increases to the parent claiming child support. Other reasons were given by the Court for sidestepping the D.B.S rules, but as noted earlier, one doesn’t want to have to be trying to figure out a way around D.B.S. Avoid the problem in the first place by commencing your claim for retroactive child support when your child is eligible for support.

A simple rule to follow.

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