How long can child maintenance be backdated for

What Happens to Retroactive Child Support If the Child is An Adult?

March 11, 2022
Caleigh Crockford
Divorce

In September 2020, the Supreme Court of Canada ruled that retroactive child support may be payable even if the child has reached the age of majority and is an adult at the time the party makes the claim for support. Retroactive child support is the right of the child.

If you have questions about ongoing or retroactive child support, our Calgary divorce lawyers, child support lawyers, and mediators are here to help. Connect with us today and we can ensure you know your legal rights and obligations when determining retroactive child support.

What is Retroactive Child Support and Why Does it Matter?

Retroactive child support refers to monies owed by a party on a retroactive basis. This could be because they were not paying any support following separation or they were not paying the correct amount of child support pursuant to the Federal Child Support Guidelines.

Typically, it is determined that retroactive child support claims can go back three years. However, this is a grey area and open to interpretation of the Courts as child support is the right of the child and there are many factors that contribute to the amount and duration of child support payable. For example, if one party misrepresents their income or causes the other parent to feel threatened by any means if they pursue child support claims, the court may order retroactive child support further back than three years – even if the child is an adult at the time the claim is being made.

Michel v Graydon: Determining Factors in the Supreme Court Ruling on Retroactive Child Support

The parties in this case lived in a common-law relationship for 4 years and had a son during their partnership. Upon the breakdown of their relationship, they executed a Separation Agreement which laid out the terms of child support. The child lived with the mother and as such, the father was paying child support on a monthly basis as per the terms of the Agreement.

However, in the Agreement, the father’s income was not accurate and was much less than his true income. As years passed, his income became even greater, resulting in a large discrepancy in his child support payments and guideline income. The mother received financial assistance from the government and as a result, the child support was assigned to the Minister under the Employment Assistance Act who never applied to review the terms of the child support payable.

The Outcome of Improper Disclosure and Blameworthy Conduct

In 2015, the mother made an application to address the issue of child support not being paid in accordance with the father’s initially inaccurate and since increased income. At the time she made this application, the child was considered an adult and initially, her claim to vary support was rejected by the courts on this basis.

After multiple court hearings and appeals, this matter was heard by the Supreme Court of Canada which ordered retroactive child support to be paid in the amount of $23,000. The premise of the court ordering the retroactive child support was that the father engaged in blameworthy conduct by failing to accurately disclose his income when he signed the Separation Agreement.

Frequently Asked Questions About Retroactive Child Support

Ques – Is retroactive child support the same as arrears?

Ans – No, retroactive child support and arrears refer to different obligations. A recipient spouse can order retroactive child support that was not previously agreed to, while arrears occur when the payor has not met their obligations according to a previous agreement or court order in place for child support. Essentially, arrears is a debt. With retroactive child support, the payor spouse is not in breach of any existing order or agreement.

Ques – What happens to arrears when the child is 18?

Ans – Arrears do not disappear when the child turns 18 and are still enforceable to be paid in full.

Ques – How far back can retroactive child support be claimed?

Ans – Retroactive child support can go back a maximum of 3 years from when the support is requested. However, the Supreme Court can push this back further if the payor was involved in blameworthy conduct such as withholding accurate information about their income.

Ques – How do I get my child support arrears dismissed?

Ans – Child support arrears may be dismissed if the payor’s circumstances have changed significantly with valid proof, including long-term change in income, extraordinary expenses incurred for the children, costs for visitation with their children, or the number of dependent children has changed. If the payor can provide full financial disclosure, a judge may consider the payor’s ability to make payments.

Ques – At what age does child maintenance stop?

Ans – This answer depends on the details of the court order as some include specific direction on when support ends. Even if the child becomes an adult, maintenance may still be payable according to the circumstances. An example of a specific end to child maintenance may be when the child is no longer in school, when the child reaches the age of 18, or when the child marries, to name a few. In Alberta, the Maintenance Enforcement Program (MEP) follows the direction of the court order.

How Far Back Can I Claim Child Maintenance?

What Is Child Maintenance?

You may or may not be aware of what it is, but just for the avoidance of doubt –
It’s money that’s used to help pay for your child’s living costs.

It’s paid by the parent who doesn’t ordinarily live with the child to the person who has the most day-to-day care of the child.

Child maintenance is often referred to as child support, and you can get it if:

You’re the main carer for the child
The other parent doesn’t live with you as part of your family

A child is defined as either someone who’s under 16 or under 20 if they’re in approved education or training.

You’ll need to pay child maintenance if:

You are the child’s biological or adoptive parent
You don’t live with the child as part of their family
You are the child’s legal parent

But How Far Back Can I Claim Child Maintenance?

The calculation of child maintenance involves several factors and might be a part of a divorce or the end of a civil partnership.

You can ask the Child Maintenance Service for a ruling on the amount of child maintenance to be paid, and it’s worth noting that in any calculation you’ll need to provide information on:

how much the paying parent earns
how many children the paying parent is or will be paying maintenance for
how many nights a week the child spends with the paying parent
if any other children live with the paying parent

If there has been a significant timeframe between you and your former partner separating and sorting out child maintenance, then it could be a case of backdating your child maintenance claim.

If your former partner has been lax on paying voluntary child maintenance, then it’d be wise to contact the CMS as soon as possible.

The issue here is that the CMS can’t recoup payments that your former partner promised to pay under an informal or voluntary arrangement…

BUT you might be able to take civil legal action against them to attempt to recover the missed payments through the courts.

If your former partner was ordered to pay maintenance as part of your divorce or civil partnership and they’ve stopped paying, then this will have severe consequences…

In this case, it’d be prudent to seek legal advice as you may need to go to court to resolve this.

All in all, child maintenance can be backdated for a long period, but there’s no definitive answer as to how long. Essentially, it depends on the individual case and circumstances, and it might mean going to court to resolve the situation.

Getting A Ruling On Child Maintenance

You can ask the Child Maintenance Service for a ruling on the amount of child maintenance to be paid, and it’s worth noting that in any calculation you’ll need to provide information on:

how much the paying parent earns
how many children the paying parent is or will be paying maintenance for
how many nights a week the child spends with the paying parent
if any other children live with the paying parent

It’s also worth noting that if the parent who has is on certain benefits, then the other parent will receive a maximum of £7 per week.

Eligible benefits include:

Carer’s Allowance
Employment and Support Allowance
Income Support
Jobseeker’s Allowance
Pension Credit
State Pension
Universal Credit calculated on the basis that they have no income

What Do I Need To Know About Child Maintenance?

There are two options when paying/receiving child maintenance:

Direct pay – payments go directly from the paying parent to the parent caring for the child
Via the CMS – this is known as collect and pay, and means money is transferred via the CMS

If you’re intending to set up a direct payment, then you can make your own arrangements. This could be money paid directly into your bank account.

However, you can ask the CMS to set up a non-geographical bank account if you don’t want the payee to know where you live.

You might be required to go to court to arrange child maintenance – this will be necessary if the parent paying maintenance either:

Lives outside the UK
Earns more than £3,000 per week and you want to top up the maintenance you receive

You’ll also need to go to court to ask for more maintenance if you need to pay for extra costs such as your child’s education or costs associated with a disability.

Get Connected With A Specialist Family Solicitor Near Me Now!

Find A Solicitor

To be connected to a specialist divorce solicitor near to where you live, please either call us now on 0845 1391399 or complete a Free Online Enquiry ».

Other Child Maintenance Advice You May Find Helpful

Can Child Maintenance Be Backdated?
Child Custody Law
Child Maintenance Advice For Fathers
Child Maintenance Calculator
How Far Back Can I Claim Child Maintenance?
How Much Child Maintenance Should I Pay?
How To Reduce Child Maintenance Payments
When Does Child Maintenance Stop?

Recovery of alimony for the past period \ Acts, samples, forms, contracts \ Consultant Plus

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Recovery of alimony for the past period

A selection of the most important documents upon request Collection of alimony for the past period (legal acts, forms, articles, expert advice and much more).

Alimony:
Maintenance obligations of children to support their parents
Alimony obligations of spouses
Alimony in 6-NDFL
Alimony in a solid amount of
Alimony of individual entrepreneur
more ...

Judicial practice : Alimony for the last period

Open the document in your system ConsultantPlus:
Selection of court decisions for 2020: Article 113 "Determination of alimony debt" of the RF IC
(R.B. Kasenov) The court refused to satisfy the claims of the plaintiff - the recoverer of alimony for a minor child in enforcement proceedings to recognize as illegal the inaction of the bailiff, expressed in the refusal to calculate the debt on alimony; on the obligation of the bailiff-performer to calculate the debt. At the same time, the court recognized the conclusions of the trial court that the provisions of paragraph 2 of Art. 113 of the Family Code of the Russian Federation are of a general nature in relation to paragraph 1, since the fault of the alimony non-payer is presumed, therefore it is necessary to calculate the debt for the entire period from the moment the alimony is collected. As the court pointed out, as a general rule, the recovery of alimony for the past period is carried out within the three-year period preceding the presentation of the writ of execution for recovery. Alimony for the past period may be recovered within a three-year period from the date of applying to the court, if the court establishes that prior to applying to the court, measures were taken to obtain funds for maintenance, but the alimony was not received due to the evasion of the person obliged to pay alimony from their payment . In the case under consideration, there is no evidence in the case file confirming that the debtor evaded the payment of alimony. These circumstances indicate that there are no grounds for recognizing as illegal the inaction of the bailiff in terms of calculating the debt. nine0015

Open the document in your consultantPlus system:
Selection of court decisions for 2019: Article 113 "Determination of arrears of alimony" of the IC of the Russian Federation
(p .B. Kasenov) The court partially satisfied the plaintiff's claims against the Federal Bailiff Service of Russia for a constituent entity of the Russian Federation, the MOSP of the Federal Bailiff Service of Russia for a constituent entity of the Russian Federation, bailiffs to challenge the decision to calculate the debt for alimony, the decision to initiate enforcement proceedings, and to recognize the actions of the bailiff as illegal on the calculation of the debt, imposing the obligation to determine the settlement period of the debt for alimony, imposing on the bailiff the obligation to calculate the debt for alimony, inclusive, taking into account the amount of the plaintiff's income. The court pointed out that, in accordance with Art. 113 of the Family Code of the Russian Federation, the collection of alimony for the past period on the basis of an agreement on the payment of alimony or on the basis of a writ of execution is carried out within a three-year period preceding the presentation of a writ of execution or a notarized agreement on the payment of alimony for collection. Meanwhile, in this case, when determining the period of formation of debt, an official of the bailiff service should proceed not only from the provisions of the above rule of law, but also from the following circumstances: whether the period of formation of debt was previously the subject of a dispute resolved by a justice of the peace, whether the plaintiff is guilty of non-payment alimony, for what period there was an arrears in the payment of alimony at the time of termination of enforcement proceedings, as well as the fact that the child, for whose maintenance alimony was collected, has reached the age of majority. Meanwhile, these requirements of the law were not complied with by the bailiff when issuing a decision on the calculation of alimony arrears. nine0015

Articles, comments, answers to questions : recovery of alimony for the past period

Open the ConsultantPlus:
Article: Disputes on the recovery of alimony for minor children (based on the judicial practice of the Moscow City Court)
("Electronic magazine "Advocate Assistant", 2022) As a general rule, alimony is awarded from the moment you apply to the court (clause 2, article 107 of the RF IC). However, the law provides for the possibility of recovering alimony for the past period within a three-year period from the date of applying to the court.For the court to make an appropriate decision, the plaintiff must prove that before applying to the court he took measures to obtain funds for the maintenance of the child, but did not receive them due to the defendant's evasion from their payment (for example, Appellate rulings of the Moscow City Court dated 10. 06.2021 in case N 33-23383/2021, dated 06/24/2021 in case N 33-16479/2021, dated 06/16/2021 in case N 33-19802/2021, dated 04/16/2019 in case N 33-15990/2019).

Regulations : Recovery of alimony for the past period within a three-year period from the date of applying to the court, if in the course of the trial it is established that before applying to the court, measures were taken to obtain alimony, but they were not received due to the evasion of the person obliged to pay alimony from paying them (paragraph two of clause 2 article 107 of the RF IC). nine0015

Collection of alimony for the past period

If we are talking about these outstanding debts, then, according to the norms of Ukrainian legislation, alimony for the past period can be received if: 1. Previously, documents were not submitted to the court for their retention. In such a situation, such a recovery is possible provided that the plaintiff documented that he took effective measures to receive payments from the defendant, but the latter evaded paying mandatory payments for the maintenance of children. Can I get a loan and for how long? The court in this case awards payments for past years, but within three years. 2. There is already a court decision, but it has not been received by the executive service - the recovery of the writ of execution is carried out, but not more than 3 years before it is received. If the alimony was not received in connection with the search for the debtor or his residence outside the country, then they are withheld for the entire period of the debt. nine0015

What are the retention dimensions?

Taking into account all the circumstances of the consideration of the case, the court may collect the entire debt, but not more than 3 years. The legislation establishes a maximum period (3 years) for awarding such amounts, but does not define a minimum. In this regard, the court may decide on the recovery for a period less than 3 years. Determining factors are the evidence you provide from the date you requested payment. With regard to the amount of these amounts, they can be withheld in the usual manner in such a case: • in the share of earnings; • in a fixed amount of money. The choice is yours. When withholding amounts according to the writ of execution, the amount of such payments is determined in the said court decision and in the writ itself. nine0015

How can alimony for previous years be collected?

To do this, you take the following actions: • Gather evidence that supports the facts of your application for child support and non-payment of the debtor. • Compile an appropriate statement of claim (a sample is provided). • Make and attach to the claim copies of the following documents: (your passport, TIN, birth certificates of children, certificate of residence on family composition), as well as written evidence. • Filing a statement of claim with the court at the registered place of residence of the plaintiff. The norms of the Civil Procedure Code of Ukraine oblige each party to present evidence, taking into account the circumstances that are the basis for claims or objections. The evidence base is the data on which the court relies when establishing the presence or absence of facts that substantiate the claims and objections of the participants in the process. And also, other documents taken into account when considering a particular case. Judicial practice shows that a written appeal to the payer with a requirement to pay alimony can serve as evidence. At the same time, it is necessary to have supporting documents about their existence and receipts to the addressee (the court needs receipts for sending letters, the letters themselves, inventories and notifications of receipt). The guarantee that the debts for previous years will be returned to you is the timely adoption of measures to fulfill the payer's obligations to the children. If the ex-spouse does not voluntarily pay for unknown reasons, then despite the fact that you have maintained a trusting relationship with him, instead of verbal conversations, you should start sending him letters. In the future, in the event of an aggravation of the situation, you will have certain guarantees in your hands. In these cases under the writ of execution, the evidence is written evidence that: • the search for the payer was carried out; • the debtor traveled outside the country (information is provided by the migration service).